SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 


GIFT  OF 

Roscoe  Pound 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonminingOOcost 


CASES 


AMERICAN 
LAW  OF  MINING 


SELECTED  AND  ARRANGED 

By 
GEORGE  P.  COSTIGAN,  Jr. 

Professor  of  Law  in  Northwestern  University 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

1912 


T 


Copyright  1912 

BY 

GEORGE  P.  COSTIGAN,  Jr. 


TO  MY  COLLEAGUES 

IN 

THE  NORTHWESTERN  UNIVERSITY 

LAW  SCHOOL  FACULTY 


6'  .^,V*'  sT     -^'-J' 


PREFACE 


The  preparation  of  a  case-book  on  the  American  Law  of  Alining 
has  been  difficult  not  only  because  of  the  statutory  nature  of  the 
subject,  but  also  because  of  the  excessive  length  of  so  many  of  the 
mining  law  cases  and  of  the  necessity  of  so  limiting  the  number  of 
pages  of  the  case-book  that  it  can  be  covered  in  the  time  which  the 
various  law  schools  can  fairly  allot  to  mining  law.  In  eliminating 
from  the  selected  cases  all  extraneous  matter,  the  compiler  has  en- 
deavored to  leave  in  the  statements  of  facts  and  in  the  opinions 
everything  of  value  to  the  determination  of  the  mining  law  points 
involved.  All  omissions  from  the  cases  are  indicated  in  the  foot- 
notes and  by  the  use  of  stars  in  the  text. 

After  due  consideration  it  seemed  best  not  to  include  in  the  ap- 
pendix anything  more  than  certain  selected  passages  from  the  United 
States  mining  laws.  The  mining  regulations  of  the  General  Land 
Office  might  well  have  been  inserted,  but  because  of  the  large  amount 
of  space  which  they  would  occupy  and  because  of  the  desirability  of 
having  each  student  provide  himself  with  the  latest  revision  of  these 
regulations  they  were  omitted.  A  copy  of  these  regulations  can  be 
obtained  from  the  Commissioner  of  the  General  Land  Office,  Wash- 
ington, D.  C. 

While  selected  United  States  mining  laws  are  given  in  the  ap- 
pendix, quotations  from  these  laws  and  from  the  mining  regulations 
of  the  General  Land  Office  are  given  also  at  appropriate  places 
throughout  the  case-book  in  the  hope  that  thereby  the  work  of  stu- 
dent and  of  teacher  will  be  facilitated. 

George  P.  Costigan,  Jr. 

Chicago,  111.,  August  i,  1912. 


TABLE  OF  CONTENTS 


CHAPTER  I. 

PRELIMINARY   DEFINITIONS. 
SECTION.  PAGE. 

1.  Lodes  or  veins  and  their  apexes 1 

2.  Placers  62 

CHAPTER  n. 

WHO    MAY   AND   WHO    MAY   NOT   LOCATE    MINING   CASES. 

1.  Aliens    71 

2.  Corporations  75 

3.  Infants  and  agents 78 

4.  United   States  mineral   surveyors  and  other  ofificers,   clerks  and   em- 

ployees in  the  general  land  office 82 

5.  Accommodation  locators 86 

CHAPTER  HL 

THE   DISCOVERY   OF   LODE   AND   PLACER   CLAIMS. 

1.  Rights  prior  to  discovery 89 

2.  What  constitutes  discovery 109 

3.  The  relation  between  discovery  and  location 125 

4.  Discovery  within  an  older  existing  location 134 

CHAPTER  IV. 

THE   L0C.\TI0N   OF   LODE  AND   OF  PLACER  CLAIMS. 

1.  Discovery  work 143 

2.  Posted  notices   153 

3.  Marking  the  location 176 

4.  Record 217 

5.  Known  lodes  in  placers 257 

6.  Adverse  possession  as  a  substitute  for  the  acts  of  location 272 

vii 


Viii  TABLE    OF    CONTENTS. 

CHAPTER  V. 

THE  LOCATION  OF  TUNNEL  SITES  AND  OF  BLIND  VEINS  IN  TUNNELS. 

CHAPTER  VI. 

ANNUAL  LABOR  OR  IMPRO\-EMENTS  AND  THE   ABANDONMENT,   FORFEITURE   AND 
RESUMPTION   OF   WORK   ON   LODE   AND   PLACER   CLAIMS. 

SECTION.  PAGE. 

1.  The  annual  labor  and  improvements  requirement 305 

2.  Forfeiture  by  relocation 354 

3.  Abandonment    ■390 

4.  Resumption  of  work 395 

CHAPTER  Vn. 

SUB-SURFACE  RIGHTS. 

1.  Vein  essentials  for  extralateral  right  purposes 411 

2.  Intralimital  rights 412 

3.  Extralateral  rights  under  the  act  of  1866 421 

4.  Extralateral  rights  under  the  act  of  1872 431 

5.  Cross  veins  and  veins  uniting  in  the  dips 543 

6.  The  effect  of  conveyances  of  extralateral  rights 551 

CHAPTER  VHI. 

ADVERSE  CLAIMS  AND  PROTESTS  AGAINST  THE  ISSUANCE  OF  PATENTS. 

CHAPTER  IX. 

1.  Indian  reservations  and  forest  reserves 585 

2.  Railroad  land  grants 595 

3.  State  school  land  grants 605 

4.  Mexican  land  grants 607 

5.  Homestead  entries  612 

6.  Town  sites  616 

7.  Mill  sites 627 

CHAPTER  X. 

OIL,  GAS  AND  OTHER  MINING  LEASES. 

1.  I  Ik-  property  rights  of  lessees  under  oil  and  gas  leases 635 

2.  Covenants  and  conditions  in  oil  and  gas  leases 662 

3.  Othi  r  mining  leases ' 711 


TABLE   OF    CONTENTS.  IX 

CHAPTER  XI. 

TENANCIES    IN    COMMON    AND    MINING    PARTNERSHIPS. 
SECTION.  PAGE. 

1.  Tenancies  in  common Thl 

2.  Mining  partnership    755 

CHAPTER  Xn. 

RIGHTS  OF  ACCESS  ON  SEVERANCE  OF  SURFACE  FROM   MINERALS  AND  RIGHTS  OF      . 
SUBJACENT   AND   OF   LATERAL    SUPPORT. 


TABLE  OF  CASES 


[References  are  to  Pages.] 
Ajax  &c.  Min.   Co.  v.  Hilkey         527 


Argonaut    Min.    Co.    v.    Kennedy 

&c.  Mill.  Co.  421 

'Aye  V.    Philadelphia    Co.  676 


B 


Barnsdall  v.  Bradford  Gas  Co.  648 
Batterton  v.  Douglas  Mining  Co.  338 
Beals  V.  Cone  187 
Beals  V.  Cone  143 
Beals  V.  Cone  389 
Belk  V.  Meagher  358 
Bergquist  v.  West  Virginia- 
Wyoming  Copper  Co.  240 
Bonner  v.  Meikle  616 
Bramlett  v.  Flick  228 
Brewster  v.  Lanyon  Zinc  Co.  678 
Brewster  v.  Shoemaker  137 
Brockbank  v.  Albion  Min.  Co.  188 
Brown  v.  Gurney  372 
Brown  v.  Small  372 
Brown  v.  Fowler  641 
Brown  v.  Ohio  Oil  Co.  641 
Buffalo  &c.  Copper  Co.  v.  Crump  227 
Butte  &c.  Copper  Co.  v.  Rad- 
milovich                         -  174 


Calhoun    &c.    Min.    Co.    v.    Ajax 

&c.  Min.  Co.  286 

Campbell    v.    Ellett  283 

Carson  City  &c.  Min.  Co.  v.  North 
Star  Min.  Co.  488 


Catron  v.  Old  493 

Chartiers  &c.  Coal  Co.  v.  Mellon  760 
Childers  v.  Neely  755 

Chrisman  v.  Miller  110 

Cleary  v.  Skiffich  628 

Clipper  Min.  Co.  v.  Eli  &c.  Land 

Co.  268 

Coleman  v.  Curtis  340 

Colorado  &c.  Min.  Co.  v.  Turck  420 
Conn  V.  Overto  393 

Copper  &c.  Smelting  Co.  v.  Butte 

&c.  Min.  Co.  313 

Cosmopolitan  Min.  Co.  v.  Foote  516 
Creede  &c.  Mill.  Co.  v.  Uinta  &c. 

Transp.  Co.  295 


D 


Del   Monte   &c.   Mill.   Co.   v.  Last 

Chance  &c.  Mill.  Co.  445 
Duggan  V.  Davey  25 
Duncan  v.  Eagle  Rock  &c.  Reduc- 
tion Co.  71 
Dunlap  V.  Pattison  80 
Doe  V.  Waterloo  Min.  Co.  75 
Doe  V.  Waterloo  Min.  Co.  177 


Eastern  Oil  Co.  v.  Coulehan  699 
Elder  v.  Horseshoe  &c.  Mill.  Co.  342 
Electro-Magnetic  &  Devel.   Co.  v. 

Van   Auken  146 

Empire  &c.  Min.  Co.  v.  Tombstone 

&c.  Min.  Co.  443 


XI 


Xll 


TABLE   OF    CASES. 


[References  are  to  Pages.] 

Enterprise  Min.  Co.  v.  Rico-Aspen 

&c.  Min.  Co.  277 

Erhardt  v.  Boaro  89 

Eureka  &c.  Min.  Co.  v.  Richmond 

Min.  Co.  2 


Farmin 

gton      Gold-Min 

Co.     \ 

Rhymney  &c.  Copper 

Co. 

222 

Farrell 

V.  Lockhart 

377 

Fee  V. 

Durham 

403 

Fisher 

V.  Seymour 

569 

Flagsta 

ff  &c.  Min.  Co. 

V.  Tarbet 

431 

Fowler 

V.  Delaplain 

646 

Fox  V. 

Myers 

114 

Fredricks  v.  Klauser 

321 

Gadbury  v.  Ohio  &c.  Gas  Co.         671 
Gemmell  v.   Swain  95 

Gird  V.   California   Oil   Co.  159 

Golden  v.  Murphy  622 

Graciosa  Oil  Co.  v.  Santa  Barbara 

County  652 

Grand  Central  ]\Iin.  Co.  v.  Mam- 
moth Min.  Co.  41 
Gregory  v.   Pershbaker  62 
Gwillim    V.    Donnelan                        131 


H 

I  [all   V.   Kearney 
Hanson  v.  Craig 
1  larpcr    v.    Hill 
Mawgood  V.  Emery 
Haynes  v.  Briscoe 
Hall  V.  Vernon 
Headlcy  v.  Hoopengarncr 
TIealey  v.  Rupp 
Hermocilla  v.  Hubbell 
Honaker  v.   Martin 
Huggins  V.  Daley 
Humphreys    v.    Idaho    &c. 
Co. 


Dcvcl. 


318 
100 
213 
326 
346 
752 
662 
568 
605 
395 
635 

272 


Jameson  v.  James  612 
Jefferson    Min.    Co.    v.    Anchoria- 

Leland  &c.  Mill.  Co.  533 

Johnson  v.   Young  253 

Jones  V.  Prospect  &c.  Tun.  Co.       19 

Jones    V.    Wild    Goose    &c.  Trad. 

Co.  207 

Justice  Min.  Co.  v.  Barclay  399 


K 


Kelly  v.   Keys  644 

Kendall  v.  San  Juan  &c.  Min.  Co.  585 
Kern  Oil   Co.  v.   Crawford  195 

King  V.  Amy  &c.  Min.  Co.  437 


L 


Lange  v.  Robinson  121 

Lavagnino  v.  Uhlig  362 

Lawson  v.  United  States  Min.  Co.  498 
Lee  V.  Stahl  547 

Lockhart  v.  Johnson  607 

Loveland  v.  Longhenry  730 


M 


^IcCann  v.   McMillan  390 

McCleary    v    Broaddus  153 

McConaghy  v.  Doyle  258 

McDonald  v.  Montana  Wood  Co.  204 
McGraw  &c.  Gas  Co.  v.  Kennedy  708 
McKinley  &c.  Min.  Co.  v.  Alaska 

&c.  Min.  Co.  192 

Mattingly  v.  Lewisohn  310 

Matulys  v.    Philadelphia   &c.    Iron 

Co.  776 

Merced  &c.  Min.  Co.  v.  Patterson  104 
Merchants'     Nat.     Bank     v.     Mc- 

Keown  ^30 

Montana    Ore    Purchasing    Co.    v. 

Boston  &c.  Min.  Co.  551 

IMound  City  &c.  Gas  Co.  v.  Good- 
speed  &c.  Oil  Co.  658 


TABLE    OF    CASES. 


XIU 


[References  are  to  Pages.] 


734 
117 
148 
334 


769 
305 


Muhlenberg  v.   Henning 
Alurray   v.    White 
^lurray  v.  Osborne 
?^Iurray  v.   Polglase 

N 

Xoonan  v.   Pardee 
Xorthmore  v.  Simmons 

O 


Oregon  &c.  Min.  Co.  v.  Brown     181 
Oscamp  V.  Crystal  River  Min.  Co.     369 


PeHcan  &c.  Min.  Co.  v.  Snodgrass  125 
Piedmont  &c.  Coal  Co.  v.  Kear- 
ney 779 
Plummer  v.  Hillside  &c.  Iron  Co.  711 
Poore  V.  Kaufman  579 
Protective    Mining    Co.    v.    Forest 

City  Mining  Co.  311 

Pyle  v.  Henderson  693 


R 


Reynolds  v.  Iron  &c.  Min.  Co.        412 
Riley  v.  North  Star  Mining  Co.     559 
Riverside  &c.    Alfg.   Co.   v.   Hard- 
wick  86 
Roxanna    &c.    Tunnelling    Co.    v. 

Cone  543 

Royston  v.  Miller  348 


St.  Louis  &c.  Mill  Co.  v.  Mon- 
tana Min.  Co.  522 
Sanders  v.  Noble  162 
Santa  Rita  Mining  Co.  v.  Upton  172 
Santa  Rita  Mining  Co.  v.  Upton  333 
Seymour  v.  Fisher  569 
Shoshone  Min.  Co.  v.  Rutter  354 
Sierra  &c.  Reduction  Co.  v.  Win- 
chell  141 


Small  v.  Brown  372 

State  v.  District  Court  471 

Steelsmith  v.  Gartlan  664 

Stevens    v.    Gill  21 

Stevens  v.  Williams  13 

Street  v.  Delta  Mining  Co.  382 


Strickland 

Co. 
Sturtevant  v.   Vogel 
Sullivan  v.   Sharp 
Swanson  v.   Sears 


Commercial   Mining 


224 
218 
255 
388 


Co. 


Tabor  v.  Dexler 
Talmadge  v.   St.  John 
Tennessee     &c.     ^Mineral 

Brown 
Thompson   v.    Spray 
Thornton  v.  Kaufman 
Tonopah  &c.  Min.  Co.  v.  Tonopah 

Min.    Co. 
Traphaagen  v.   Kirk 
Treasury    &c.    Reduction    Co. 

Boss 
Turner   v.    Sawver 


U 


40 
235 

714 
78 
408 
1 

237 
595 

156 
574 


United  States  v.  Rizzinelli  588 

Upton  V.  Santa  Rita  IMining  Co.  172 

Upton  V.  Santa  Rita  Mining  Co.  333 

Upton  V.   Larkin  134 

Upton  V.  Larkin  151 


V 


Van  Ness  v.  Rooney  601 

Van  Zandt  v.  Argentine  Min.  Co.  128 
Veronda  v.  Dowdy  125 


W 


Wailes  v.  Davies  311 

Walrath  v.  Champion  ^lin.  Co.        502 
Wolfe  V.  Childs  745 


XIV 


TABLE   OF   CASES. 


[References  arc  to  Pages.] 


Warnock   v.    DeWitt  356 

Washoe  Copper  Co.  v.  Junila  270 

Waskey  v.  Hammer  82 

Waterloo  Min.  Co.  v.  Doe  109 

Waterloo  Min.  Co.  v.  Doe  485 
Webb  V.  American  &c.  Min.  Co.     66 

Weed  V.  Snook  96 

West    Granite    &c.    Min.    Co.  v. 

Granite  &c.  Min.  Co.  190 


Wilmore  Coal  Co.  v.  Brown  719 

Wiltsee  v.  Arizona  &c.  Mill.  Co.  169 

Woods  V.  Holden  481 

Worthern  v.    Sidway  200 


Zeigler  v.    Brenneman  747 


CASES  ON  MINING 


CHAPTER  I. 

PRELIMINARY   DEFINITIOXS. 

Section  1. — Lodes  or  Veins  and  their  Apexes. 


FEDERAL  STATUTES. 

Sec.  2319.  All  valuable  mineral  deposits^  in  lands  belonging  to  the  United 
States,  both  surveyed"  amTlinsurveyed,  are  hereby  declared  to  be  free  and 
open  to  exploration  and  purchase,  and  the  lands  in  which  they  are  found  to 
occupation  and  purchase,  by  citizens  of  the  United  States  and  those  who  have 
declared  their  intention  to  become  such,  under  regulations  prescribed  by  law, 
and  according  to  the  local  customs  or  rules  of  miners  in  the  several  mining 
districts,  so  far  as  the  same  are  applicable  and  not  inconsistent  with  the  laws 
of  the  United  States. 

Sec.  2320.  ]^ning  claims  upon  veins  or  lodes  of  quartz  or  other  rock  .in 
place  bearing  go!^,  silver,  "cinnabar,  lead,  tin,  copper,  or  other  valuable  deposits, 
heretofore  located,  shall  be  governed  as  to  length  along  the  vein  or  lode  by 
the  customs,  regulations,  and  laws  in  force  at  the  date  of  their  location.    *    *    * 

Sec.  2322.    The  locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge,  situated  on  the 
public  domaiji,  their  heirs  and  assigns,  where  no  adverse  claim  exists  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as  they  comply 
with  the  laws  of  the  United  States,  and  with  State,  Territorial,  and  local  reg- 
ulations not  in  conflict  with  the  laws  of  the  United  States  governing  their 
possessory  title,  shall  have  the  exclusive  right  of  possession  and  enjoyment  of  j 
all  surface  includecTvvifhin  the  Tines  of  their  locations,  and  of  all  veins,  lodes,  j 
and  ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside,  "^ 
ai„.such   surface   lines   extended   downward   vertically,   although   such   veins,  | 
lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their  course  down-j 
ward  as  to  extend  outside  the  vertical  side  lines  of  such  surface  locations.,' 
But  their  right  of  possession  to  such  outside  parts  of  such  veins  or  ledges 
shall  be  confined  to  such  portions  thereof  as  lie  between  vertical  planes  drawn 
downward  as  above  described,  through  the  end  lines  of  their  locations,  so  con- 
tinued in  their  own  direction  that  such  planes  will  intersect  such  exterior  parts 
of  such  veins  or  ledges.    And  nothing  in  this  section  shall  authorize  the  lo- 
cator or  possessor  of  a  vein  or  lode  which  extends  in  its  downward  course 
beyond  the  vertical  lines  of  his  claim  to  enter  upon  the  surface  of  a  claim 
owned  or  possessed  by  another.    Rev.  St.  U.  S.  §§  2319,  2320,  2322. 

I 

1 — Mining  Law 


'■'^^  '  f^v*>^  «^  «iS)fc3  wk&iji*^ 


V.^ 


PRELIMINARY   DEFINITIONS. 


EUREKA  CONSOL.  MIN.  CO  v.  RICHMOND  MIN.  CO. 

1877.     Circuit  Court,  D.  Nevada. 
4  Sawy.  (U.  S.)  302,  9  Morr.  Min.  Rep.  578. 

The  accompanying-  diagram  represents  the  surface  location  of  the 
Champion,  At  Last,  Margaret  or  Lupita,  Nugget,  Savage,  Buck- 
eye, Mammoth,  Sentinel  and  Elliptic  mining  claims  of  the  Eureka 
Company,  plaintiff,  and  of  the  Richmond,  Lookout  and  Tip-top 
claims  of  the  Richmond  Company,  defendant ;  the  Lawton  or  Eureka 


Ridimond 
Shaft 


BellShaft 

MARGARET 


-•ATIAST^-  ^- 


«  Croppin^s 
SENTINEL       Croppings 


©"Croppmgs 


\NUGZP 


^c, 


roppin|s 


MAMMOTH 


■■& 


.Winasail  Shaft 
•     BUCF 


Buckeye  Shaft 


_«Crop  pings 


-S7\v;n;-E-  — ' 


^""T^T. 


LODES    Ofe   VEINS   AND   THEIR    APEXES.  3 


IL,i 


shafrand  the  ninth  level  therefrom  connecting  with  ore  body  D  E ;     r*-^*t>- 
the  Richmond  shaft  and  levels  therefrom,  and  the  Potts  chamber     ft'-X^ 
from  which  ore  has  been  taken  through  the  Richmond  fifth  level;     ^.^^^^j^ 
the  line  R  W  X,  described  in  the  agreement,  and  this  line  extended   x    j^ , 
to  C.   The  dotted  line  represents  the  surface  line  of  contact  between   **  '^^ 
the  quartzite  and  limestone.   South  of  this  line  is  a  belt  of  quartzite, 
and  north  of  it  a  belt  of  metamorphosed  limestone,  and  north  of  this 
limestone  is  a  belt  of  shale.    The  ore  bodies  are  found  in  the  meta-  ^^  ^^^ 
morphosed  Hmestone  between  the  quartzite  and  shale.    This  belt  of  t-^^^J^ 
limestone  bounded  by  the  quartzite  and  shale  extends  nearly  east  and  ^^    ^  C^ 
west  over  one  mile,  and  varies  in  width  from  five  to  eight  hundred  ^    ^^ 
feet  on  the  surface  to  from  two  to  four  hundred  feet  at  the  greatest 
depth  of  working,  which  is  about  nine  hundred  feet.    The   Potts  VStCO- 
chamber  is  about  five  hundred  feet  below  the  surface.   The  quartzite  V"^  s^ 
and  limestone  dip  to  the  northward  at  an  angle  of  about  45°  from  ^  /   » 
the  horizon.  ^ 

In  1873,  the  Eureka  Company,  owned  the  Lookout  claim,  and  the  t,.;^^,!^^^^ 
Richmond  Company  found  on  the  surface  in  the  Richmond  claim,  ^^  ^^ 
and  followed  down  on  its  dip  to  the  northward  under  the  Lookout 
surface  a  large  body  of  ore.  The  Eureka  Company  claiming  the  ore  p^ts  rt 
under  the  Lookout  surface,  thereupon  sued  the  Richmond  Company  KUJn 
to  determine  the  title  thereto,  and  in  settlement  of  that  litigation  an  fj^ 
agreement  in  writing  was  made  on  the  sixteenth  day  of  June,  A.  D.  I^::^^,'. 5L. 
1873,  between  the  plaintiff,  the  Eureka  Consolidated  Mining  Com- ^,„i^^_^^  ^ 
pany,  of  the  first  part,  and  the  defendant,  the  Richmond  Mining  v'^^^^ 
Company  of  Nevada,  party  of  the  second  part,  which  provided :  O^A-^k-T 

"Whereas,   differences  have  arisen,  and  now  exist,  between  the   kiJL 
parties  hereto  in  respect  to  the  ownership  and  right  of  possession  of  ^    *' 
certain   mining   ground,   known   as   the   Lookout   ground  or   claim   W^   C* 
*     *     *     and  of  the  ores,  metals  and  deposits  found  in  and  under   ^^   ^, 
said  ground ;  and  whereas  an  action  is,  or  certain  actions  are,  now        ^ 
pending  in  jthe  courts  of  the  state  of  Nevada,  wherein  the  party  l^^m^   L 
hereto  of  the  first  part  is  plaintiff,  and  the  party  hereto  of _the  second^***,       ^  ^ 
part  and  others  are  defendants,  for^rhe  recovery     *     *     *     of  the'-^  ^   T 
possession  of  the-gfound  and  of  the  ores  therein  contained,  etc.;  and  U^i^^^^ 
-^Twtiereas,  the  said  parties  have  agreed  to  settle  all  the  differences  be- 
tM  tween  them,  and  put  an  end  to  the  litigation  now  pending  as  afore-  tTNMr 

(P  (jCsaid ;  "i^tf^ 

aI      "Now,  therefore,  this  agreement  witnesseth,  that  the  said  party 
*^      pi  the  first  part,  for  and  in  consideration  of  the  sum  of  $85,000  j*""^^ 
lY^     *     *     and   the   further   covenants,   agreements,   and   conditions  ^  (^.<" 
L^  hereinafter  contained     *     *     *     has  agreed,  and  does  hereby  agree,  *,      ^^ 
l^V"  to  convey  to  the  said  party  of  the  second  part,  its  successors  and  as-  "^^^ 

r  signs,  with  warranty  against  its  own  acts,  all  that  certain  lot,  piece  (jsy^p^^vf 
'It      or  parcel  of  land  or  mining  ground     *     *     *     known  as  the  Look-  'J 

^.^"   out  ground  or  claim ;  and  also  all  the  mining  ground  and  claim  lyingC-S*v-<A4 
r    /-on  the- north-westerly  side  of  a  certain  line,  commencing  at  the  north-    ^M^'- 


y^  4^                                        ^PRELIMINARY   DEFINITIONS. 

MI 

,^lg)  easterly  corner  of  the  Margaret  mining  ground  or  claim,  which  cor- 

"Jjp    {i  ner  is  marked  X  on  the  map  or  plan  hereto  annexed,  and  made  part 

^1^^'  '.    of  this  agreement ;  running  thence  in  a  south-westerly  direction  along 


"h 


C^i^  ■■  the  edge  of  said  Margaret  ground,  the  At  Last  ground,  and  the 
^          Champmn  ground,  to  a  point  marked  W  on  said  map ;  thence  south- 
erly to  the  north-easterly  corner  of  the  Nugget  ground ;  thence  in  a 
south-westerly  direction  along  the  edge  of  said  Nugget  ground,  to 
the  north-westerly  corner  thereof  at  the  point  marked  R  on  said  map 
or  plan ;  together  with  all  the  ores,  precious  metals     *     *     *     and 
all  veins,  lodes,  legdes,  deposits,  dips,  spurs  or  angles  on,  in,  or  under 
the  same  contained     *     *     *  ;  and  the  said  party  of  the  first  part 
■^/^         further  agrees  not  to  protest  against  or  put  any  obstacle  in  the  way 
^      of  the  party  of  the  second  part  in  their  application  for  a  United 
\      States  patent  to  the  Richmond  or  other  lodes  or  veins,  provided  such 
application  does  not  conflict  or  cross  the  aforesaid  line  agreed  upon 
-  ^^^    *     *     *  .  ^jj^  |-|^g  said  party  of  the  second  part,  for  the  considera- 
tion aforesaid,  hath  further  agreed,  and  doth  hereby  further  agree 
'■**  ^to  convey  unto  the  said  party  of  the  first  part,  with  warranty  against 
.     its  own  acts,  all  right,  title,  or  interest  in  or  to  any  and  all  the  land 
or  mining  ground,     *     *     *     on  the  south-easterly  side  of  the  line 
AJU^'f^  hereinbefore  mentioned  and  laid  down  on  the  said  map  hereto  an- 
"%*  nexed,  and  in  and  to  all  ores,  precious  metals,  veins,  lodes,  ledges, 

^"^  deposits,  dips,  spurs  and  angles  on,  in  or  under  the  said  land  or  min- 

f«».(^-A    ing  ground,  or  any  part  thereof.   It  being  the  object  and  intention  of 
.^k^     the  said  parties  hereto  to  confine  the  workings  of  the  party  of  the 
*  .» -^^    second  part  to  the  north-westerly  side  of  the  said  line  continued 
,  X2-r-d       downward  to  the  center  of  the  earth,  which  line  is  hereby  agreed 
t)  upon  as  the  permanent  boundary  line  between  the  claims  of  the  said 

parties. 
VVC«t) ,  Conveyances  were  also  made   in  pursuance   of  this   agreement. 

I     -N.      After  this  agreement  and  settlement,  the  defendant  followed  the  ore 
)  K^-0     body  found  in  the  Richmond  and  Lookout  claims  downward  toward 
»  icA.  * '     t^^6  northward  on  the  dip,  and  eastward  on  the  general  course  or 
strike  of  the  underlying  quartzite  and  overhanging  shale  to  the  Potts 
<*«-*^         chamber,  where  the  body  of  ore  extended  eastward  across  the  line 
'       i .        W  X,  produced  northward  from  X  to  C.    The  ore  body  on  the  line 
'^^^^^         from  the  Richmond  to  the  Potts  chamber  varied  greatly  in  size  at 
ij_r^itj3     different  points,  being  alternately  contracted  or  pinched  to  a  small 
seam,  then  widening  into  larger  bodies,  but  there  was  a  continuous 
^*^         connection.    The  defendant  claimed  and  worked  that  part  of  the 
chamber  to  the  eastward  of  said  line  W  X  produced  to  C,  whereupon 
the  plaintiff  claiming  that  portion  of  the  ore  body  as  being  on  the  dip 
of  its  portion  of  the  lode  brought  this  action  to  recover  the  possession. 
The  other  facts  arc  sufficiently  stated  in  the  opinion  of  the  court. 


^ 


\,S^^p.  uv^*^  tAx^  *^  *^^^^  ^  ^Wi^ 
vlii  fU.  V-f^^v.«-  4  tY  '^'^  ^ 

'^    "^-^    «         .'   ■k     ,-u^  fl    h'<H  «*--iT  0-«*-vJ 


LODES    OR   VEINS   AND   THEIR    APEXES.  5  <|;V,^^ 

Field,  Circuit  Justice.^ — This  is  an  action  for  the  possession  of  j^ 
certain  mining  ground,  particularly  described  in  the  complaint,  situ-  f  U-i  ^ 
ated  in  Eureka  mining  district,  in  the  county  of  Eureka,  in  the  ^^^^^  4^^K>^ 
of  Nevada.    The  plaintiff  is  a  corporation  created  under  the  laws  of  f*H^"*^ 
California,  and  the  defendant,  the  Richmond  Mining  Company,  is  a-^..^^^ 
corporation  created  under  the  laws  of  Nevada.     *     *     *        ^  ; 

The  premises  in  controversy  are  of  great  value,  amounting,  by  "*■*■■       ■*' 
estimation,  to  several  hundred  thousands  of  dollars,  and  the  case  •*  ^  ^^ 
has  been  prepared  for  trial  with  a  care  proportionate  to  this  estimate  ^\j 
of  the  value  of  the  property;  and  the  trial  has  been  conducted  by      ^''IS^ 
counsel  on  both  sides  with  eminent  ability.  ^  6^ 

Whatever  could  inform,  instruct  or  enlighten  the  court,  has  been         » 
presented  by  them.    Practical  miners  have  given  us  their  testimony (^^  "W*| 
as  to  the  location  and  working  of  the  mine.    Men  of  science  have  ^^  c.iv»* 
explained  to  us  how  it  was  probable  that  nature,  in  her  processes,   ^    * 
had  deposited  the  mineral  where  it  is  found.    ]\Iodels  of  glass  have  ""^    - 
made  the  hill,  where  the  mining  ground  lies,  transparent,  so  that  we-f-jj^jj^ 
have  been  able  to  trace  the  course  of  the  veins,  and  see  the  chambers  ^^ 
of  ore  found  in  its  depths.    For  myself,  after  a  somewhat  extended:       ' 
judicial  experience,  covering  now  a  period  of  nearly  twenty  years,  ^'U^-i-^   . 
can  say  that  I  have  seldom,  if  ever,  seen  a  case  involving  the  con-  n  .    ^g. 
siderat'ion  of  so  many  and  varied  particulars,  more  thoroughly  pre-  rf*-  ■ 
pared  or  more  ably  presented.   And  what  has  added  a  charm  to  the  ^HA-U 
whole  trial  has  been  the  conduct  of  counsel  on  both  sides,  who  have  ^^__^   / 
appeared  to  assist  each  other  in  the  development  of  the  facts  of  the     ^ 
case,  and  have  furnished  an  illustration  of  the  truth  that  the  highest 
courtesy  is  consistent  with  the  most  earnest  contention. 

The  mining  ground  which  forms  the  subject  of  controversy  is  situ- 
ated in  a  hill  known  as  "Ruby  Hill,"  a  spur  of  Prospect  mountain, 
distant  about  two  miles  from  the  town  of  Eureka,  in  Nevada.    Pros- 
pect mountain  is  several  miles  in  length,  running  in  a  northerly  and 
southerly  course.    Adjoining  its  northerly  end  is  this  spur  called 
"Ruby  Hill,"  which  extends  thence  westerly,  or  in  a  south-westerly    (j^*^,^*^. 
^direction.  Along  and  through  this  hill,  for  a  distance  slightly  exceed-       j^ 
jing  a  mileT^r^  Mne~crf  limestone,  in   which,   at  different  places  **^T^^»*^ 
throughout  its  length,  and  in  various  forms,  mineral  is  found,  this  ^^^^ 
j^mineral  appearing  sometimes  in  a  series  or  succession  of  ore  bodies  , 

*more   or   less   closely  connected,   sometimes   in   apparently   isolated   r^i^*^ 
cliambers, "  and^~at  other  times  in  what  would  seem  to  be  scattered  j.^^^ 
^ains.    And  oiif  principal  inquiry  is  to  ascertain  the  character  of     »^'*"^'> 
this  zone,  in  order  to  determine  whether  it  is  to  be  treated  as  con-"  "♦HjSfcrf^" 
stituting  one  lode,  or  as  embracing  several  lodes,  as  that  term  is  used  ^_^f,    n; 
in  the  acts  of  congress  of  i866  and  1872,  under  which  the  parties    . 
have  acquired  whatever  rights  they  possess.   In  this  inquiry,  the  first    i 
thing  to  be  settled  is  the  meaning  of  the  term  in  those  acts.    This  '^^      ik 

^  Parts  of  the  opinign  are  ornittf  d.  J      t  *  1  (^  S   s^         maiP 


>l~^'J 


[TIONS. 


^ 


"^   ^:22^    o^i>^^    '(pv^Ji^   Vu^>vj2    l^  U-fi^^ 

f  6    ^  .  PRELIMINARY   DE 

^      »-.-meaning  being  settled,  the  physical  characteristics  and  the  distin- 

l^*^*'^»r:^ishing  features  of  the  zone  will  be  considered. 

Qt^^^'t  Those  acts  give  no  definition  of  the  term.  They  use  it  always  in 
connection  with  the  term  "vein."  The  act  of  1866  provided  for  the 
acquisition  of  a  patent  by  any  person  or  association  of  persons  claim- 
ing "a  vein  or  lode  of  quartz,  or  other  rock  in  place,  bearing  gold, 
silver,  cinnabar  or  copper."  The  act  of  1872  speaks  of  veins  or  lodes 
of  quartz  or  other  rock  in  place,  bearing  similar  metals  or  ores.  Any 
definition  of  the  term  should,  therefore,  be  sufficiently  broad  to  em- 
brace deposits  of  the  several  metals  or  ores  here  mentioned.  In  the 
construction  of  statutes,  general  terms  must  receive  that  interpreta- 

,  {^.^r^-       tion  which  will  include  all  the  instances  enumerated  as  comprehended 

'  by  them.   The  definition  of  a  "lode"  given  by  geologists  is,  that  of  a 

-  ^w/7-^ .  fissure  in  the  earth's  crust  filled  with  mineral  matter,  or  more  accu- 
rately, as  aggregations  of  mineral  matter  containing  ores  in  fissures. 

''■^  See  Von  Cotta's  Treatise  on  Ore  Deposits,  Prime's  Translation,  26. 

But  miners  used  the  term  before  geologists  attempted  to  give  it  a 
j?"^  definition.  One  of  the  witnesses  in  this  case,  Dr.  Raymond,  who  for 
many  years  was  in  the  service  of  the  general  government  as  commis- 
sioner of  mining  statistics,  and  in  that  capacity  had  occasion  to  ex- 
amine and  report  upon  a  large  number  of  mines  in  the  states  of  Ne- 
vada and  California,  and  the  territories  of  Utah  and  Colorado,  says 
that  he  has  been  accustomed,  as  a  mining  engineer,  to  attach  very 
little  importance  to  those  cases  of  classification  of  deposits  which 
simply  involve  the  referring  of  the  subject  back  to  verbal  definitions 
in  the  books.  The  whole  subject  of  the  classification  of  mineral  de- 
posits he  states  to  be  one  in  which  the  interests  of  the  miner  have 
entirely  overridden  the  reasonings  of  the  chemists  and  geologists. 
"The  miners,"  to  use  his  language,  "made  the  definition  first.  As 
used  by  miners,  before  being  defined  by  any  authority,  the  term 

_-.___^/ — •  'lode'  simply  meant  that  formation  by  which  the  miner  could  be  led 
.^,  or  guided.  It  is  an  alteration  of  the  verb  'lead;'  and  wdiatever  the 
•^'        miner  could  follow,  expecting  to  find  ore,  was  his  lode.   Some  forma- 

^  /  tion  within  which  he  could  find  ore,  and  out  of  wdiich  he  could  not 
expect  to  find  ore,  was  his  lode."  The  term  "lode-star,"  "guiding- 
star,"  or  "north  star,"  he  adds,  is  of  the  same  origin.  Cinnabar  is 
not  found  in  any  fissure  of  the  earth's  crust,  or  in  any  lode,  as  de- 
fined by  geologists,  yet  the  acts  of  congress  speak,  as  already  seen, 

^      '  r.     of  lodes  of  quartz,  or  rock  in  place,  bearing  cinnabar.   Any  definition 

r,  of  "lode,"  as  there  used,  which  did  not  embrace  deposits  of  cinna- 

<>/,  y     bar,  would  be  as  defective  as  if  it  did  not  embrace  deposits  of  gold 

^^  t   or  silver.    The  definition  must  apply  to  deposits  of  all  the  metals 

named,  if  it  apply  to  a  deposit  of  any  one  of  them.  Those  acts  were 

/)  not  drawn  by  geologists  or  for  geologists ;  they  were  not  framed  in 

/v-    '       the  interests  of  science,  and  consequently  with  scientific  accuracy  in 

^'  the  use  of  terms.   They  were  framed  for  the  protection  of  miners  in 

the  claims  which  they  had  located  and  developed,  and  should  receive 


r^ 


iJUv^ 


LODES    OR   VEINS   AND   THEIR   APEXES.  7 

such  a  construction  as  will  carry  out  this  purpose.  The  use  of  the 
terms  "vein"  and  "lode"  in  connection  with  each  other  in  the  act  of 
1866,  and  their  use  in  connection  with  the  term  "ledge"  in  the  act 
of  1872,  would  seem  to  indicate  that  it  was  the  object  of  the  legisla- 
tor to  avoid  any  limitation  in  the  application  of  the  acts,  which  a 
scientific  definition  of  any  one  of  these  terms  might  impose. 

It  is  difficult  to  give  any  definition  of  the  term  as  understood  and 
used  in  the  acts  of  congress,  which  will  not  be  subject  to  criticism. 

I  A  fissure  in  the^earth's  crust,  an  opening  in  its  rocks  and  strata  made 
by'^some^fofce  of  nature,  in  which  the  mineral  is  deposited,  would 
'seem  to  be  essential  to  the  definition  of  a  lode,  in  the  judgment  of 
[geologists.  But  to  the  practical  miner,  the  fissure  and  its  walls  are 
^  only  of  importance  as  indicating  the  boundaries  within  which  he  may 
'  lookfor  and  reasonably  expect  to  find  the  ore  he  seeks.  A  continu- 
ousTo3}'  of  mineralized  rock  lying  within  any  other  well-defined 
fioundartes  on  the  earth's  surface  and  under  it,  would  equally  consti- 
tute, in  his  eyes,  a  lode.  We  are  of  opinion,' therefore,  that  the  term 
as  used  in  the  acts  of  congress  is  applicable  to  any  zone  or  belt  of 
mineralized  rock. lying  within  boundaries  clearly  separating  it  from 
I  the  neighboring  rock.-  It  includes,  to  use  the  language  cited  by  coun- 
sel,  all  deposit&.flf_ .mineral  .matter  fo^nd  througli  a  mineralized  zone 
or  belf^oming  from  the  same  sourcerfcpressed  with  the  same  forms, 
and  appearing  to~ have  been  created  by  the'  same  processes. 
"■"T^xaminTng,  now,  with  this  definition  in  mind,"the  features  of  the 
zone  which  separate  and  distinguish  it  from  the  surrounding  coun- 
try, we  experience  little  difficulty  in  determining  its  character.  We 
find  that  it  is  contained  within  clearly  defined  limits,  and  that  it  bears 
unmistakable  marks  of  originating,  in  all  its  parts,  under  the  influ- 
ence of  the  same  creative  forces.  It  is  bounded  on  the  south  side  for 
its  whole  length,  at  least  so  far  as  explorations  have  been  made,  by 
a  wall  of  quartzite  of  several  hundred  feet  in  thickness ;  and  on  its 
north  side,  for  a  like  extent,  by  a  belt  of  clay,  or  shale,  ranging  in 
thickness  from  less  than  an  inch  to  seventy  or  eighty  feet.  At  the  east 
end  of  the  zone,  in  the  Jackson  mine,  the  quartzite  and  shale  ap- 
proach so  closely  as  to  be  separated  by  a  bare  seam,  less  than  an  inch 
in  width.  From  that  point  they  diverge,  until,  on  the  surface  in  the 
Eureka  mine,  they  are  about  five  hundred  feet  apart,  and  on  the 
surface  in  the  Richmond  mine,  about  eight  hundred  feet.  The 
quartzite  has  a  general  dip  to  the  north,  at  an  angle  of  about  forty- 

-  In  Hayes  v.  Lavagnino,  17  Utah  185.  53  Pac.  1029,  1033,  after  quoting  this 
paragraph  to  here,  Bartch,  J.,  for  the  court,  said : 

"It  would  seem,  from  these  considerations,  that  any  deposit  of,.mineral 
matter^  X»t judication  of  a  vein  or  lode,  found  in  a  mm'efalized  zone  or  belt 
within  defined  boundaries,  which  a  person  is  willing  to  spend  his  time  and 
1  money  to  follow  in  expectation  of  finding  ore,  is  the  subject  of  a  valid  loca- 
tion, and  that,  when  metallic  vein  matter  appears  at  the  surface,  a  valid  loca- 
tfon  of  a  ledge  deep  in  the  ground,  to  which  such  vein  matter  leads,  may  be 
■  made." 


atji 


U 


8  PRELIMINARY   DEFINITIONS. 

five  degrees,  subject  to  some  local  variations,  as  the  course  changes. 
The  clay  or  shale  is  more  perpendicular,  having  a  dip  at  an  angle  of 
about  eighty  degrees.  At  some  depth  under  the  surface,  these  two 
boundaries  of  the  limestone,  descending  at  their  respective  angles, 
may  come  together.  In  some  of  the  levels  worked,  they  are  now  only 
from  two  to  three  hundred  feet  apart. 

The  limestone  found  between  these  two  limits — the  wall  of  quartz - 
ite  and  the  seam  of  clay  or  shale — has,  at  some  period  of  the  world's 
history,  been  subjected  to  some  dynamic  force  of  nature,  by  which 
it  has  been  broken  up,  crushed,  disintegrated,  and  fissured  in  all  di- 
rections, so  as  to  destroy,  except  in  places  of  a  few  feet  each,  so  far 
as  explorations  show,  all  traces  of  stratification ;  thus  specially  fitting 
it,  according  to  the  testimony  of  the  men  of  science,  to  whom  we 
have  listened,  for  the  reception  of  the  minerals  which,  in  ages  past, 
came  up  from  the  depths  below  in  solution,  and  was  deposited  in  it. 
Evidence  that  the  whole  mass  of  limestone  has  been,  at  some  period, 
lifted  up  and  moved  along  the  quartzite,  is  found  in  the  marks  of 
attrition  engraved  on  the  rock.  This  broken,  crushed  and  fissured 
condition  pervades,  to  a  greater  or  less  extent,  the  whole  body,  show- 
ing that  the  same  forces  which  operated  upon  a  part,  operated  upon 
the  whole,  and  at  the  same  time.  Wherever  the  quartzite  is  exposed, 
the  marks  of  attrition  appear.  Below  the  quartzite  no  one  has  pene- 
trated. Above  the  shale  the  rock  has  not  been  thus  broken  and 
crushed.  Stratification  exists  there.  If  in  some  isolated  places  there 
is  found  evidence  of  disturbance,  that  disturbance  has  not  been  suf- 
ficient to  affect  the  stratification.  The  broken,  crushed  and  fissured 
condition  of  the  limestone  gives  it  a  specific,  individual  character, 
by  which  it  can  be  identified  and  separated  from  all  other  limestone 
in  the  vicinity. 

In  this  zone  of  limestone  numerous  caves  or  chambers  are  found, 
further  distinguishing  it  from  the  neighboring  rock.  The  limestone 
being  broken  and  crushed  up  as  stated,  the  water  from  above  readily 
penetrated  into  it,  and,  operating  as  a  solvent,  formed  these  caves 
and  chambers.  No  similar  cavities  are  found  in  the  rock  beyond  the 
shale,  its  hard  and  unbroken  character  not  permitting,  or  at  least 
opposing  such  action  from  the  water  above. 

Oxide  of  iron  is  also  found  in  numerous  places  throughout  the 
zone,  giving  to  the  miner  assurance  that  the  metal  he  seeks  is  in  its 
vicinity. 

This  broken,  crushed  and  fissured  condition  of  the  limestone,  the 
presence  of  the  oxides  of  iron,  the  caves  or  chambers  we  have  men- 
tioned, with  the  wall  of  quartzite  and  seam  of  clay  bounding  it,  give 
to  tlie  zone,  in  tlie  eyes  of  the  practical  miner,  an  individuality,  a  one- 
ness as  complete  as  that  whicli  the  most  perfect  lode  in  a  geological 
sense  ever  possessed.  Each  of  the  characteristics  named,  though  pro- 
duced at  a  different  period  from  the  others,  was  undoubtedly  caused 


LODES   OR   VEINS   AND   THEIR   APEXES.  9 

by  the  same  forces  operating  at  the  same  time  upon  the  whole  body  of 
the  Hmestone. 

Throughout  this  zone  of  Hmestone,  as  we  have  already  stated, 
mineral  is  found  in  the  numerous  fissures  of  the  rock.  According 
to  the  opinions  of  all  the  scientific  men  who  have  been  examined, 
this  mineral  was  brought  up  in  solution  from  the  depths  of  the  earth 
below,  and  would  therefore  naturally  be  very  irregularly  deposited 
in  the  fissures  of  the  crushed  matter,  as  these  fissures  are  in  every 
variety  of  form  and  size,  and  would  also  find  its  way  in  minute  parti- 
cles in  the  loose  material  of  the  rock.  The  evidence  shows  that  it  is 
sufficiently  diffused  to  justify  giving  to  the  limestone  the  general 
designation  of  mineralized  matter — metal-bearing  rock.  The  three 
scientific  experts  produced  by  the  plaintiff,  Mr.  Keyes,  Mr.  Raymond 
and  Mr.  Hunt,  all  of  them  of  large  experience  and  extensive  attain- 
ments, and  two  of  them  of  national  reputation,  have  given  it  as  their 
opinion,  after  examining  the  ground,  that  the  zone  of  limestone  be- 
tween the  quartzite  and  the  shale  constitutes  one  "vein"  or  "lode," 
in  the  sense  in  which  those  terms  are  used  by  miners.  Mr._  Keyes, 
who  for  years  was  superintendent  of  the  mine  of  the  plaintiff,  con- 
cludes a  minute  description  of  the  character  and  developments  of  the 
ground,  by  stating  that  in  his  judgment,  according  to  the  customs 
of  miners  in  this  country  and  common  sense,  the  whole  of  that  space 
should  be  considered  and  accepted  as  a  lead,  lode,  or  ledge  of  metal- 
bearing  rock  in  place. 

Dr.  Raymond,  after  giving  a  like  extended  account  of  the  char- 
acter of  the  ground,  and  his  opinion  as  to  the  causes  of  its  forma- 
tion, and  stating  with  great  minuteness  the  observations  he  had 
made,  concludes  by  announcing  as  his  judgment,  after  carefully 
weighing  all  that  he  had  seen,  that  the  deposit  between  the  quartzite 
and  the  shale  is  to  be  considered  as  a  single  "vein"  in  the  sense  in 
which  the  word  is  used  by  miners — that  is,  as  a  single  ore  deposit  of 
identical  origin,  age  and  character  throughout. 

Dr.  Hunt,  after  stating  the  result  of  his  examination  of  the  ground 
and  his  theory  as  to  the  formation  of  the  mine,  gives  his  judgment 
as  follows :  "My  conclusion  is  this :  That  this  whole  mass  of  rock  is 
impregnated  with  ore ;  that  although  the  great  mass  of  ore  stretches 
for  a  long  distance  above  horizontally  and  along  an  incline  down  the 
foot  wall,  as  I  have  traced  it,  from  this  deposit  you  can  also  trace  the 
ore  into  a  succession  of  great  cavities  or  bonanzas  lying  irregularly 
across  the  limestone  and  into  smaller  caverns  or  chasms  of  the  same 
sort ;  and  that  the  whole  mass  of  the  limestone  is  irregularly  impreg- 
nated with  the  ore.  I  use  the  word  'impregnation'  in  the  sense  that 
it  has  penetrated  here  and  there;  little  patches  and  stains,  ore-vugs 
and  caverns  and  spaces  of  all  sizes  and  all  shapes,  irregularly  dis- 
seminated through  the  mass.  I  conclude,  therefore,  that  this  great 
mass  of  ore  is,  in  the  proper  sense  of  the  word,  a  great  'lode,'  or  a 
great  'vein,'  in  the  sense  in  which  the  word  is  used  by  miners ;  and 


lO  PRELIMINARY   DEFINITIONS. 

that  practically  the  only  way  of  utilizing  this  dqjosit,  is  to  treat  the 
whole  of  it  as  one  great  ore-bearing  lode  or  mass  of  rock." 

This  conclusion  as  to  the  zone  constituting  one  lode  of  rock-bear- 
ing metal,  it  is  true,  is  not  adopted  by  the  men  of  science  produced 
as  witnesses  by  the  defendant,  the  Richmond  Company.  These  latter 
gentlemen,  like  the  others,  have  had  a  large  experience  in  the  exami- 
nation of  mines,  and  some  of  them  have  acquired  a  national  reputa- 
tion for  their  scientific  attainments.  No  one  questions  their  learning 
or  ability,  or  the  sincerity  with  which  they  have  expressed  their  con- 
victions. They  agree  with  the  plaintiff's  Avitnesses  as  to  the  exist- 
ence of  the  mineralized  zone  of  limestone  with  an  underlying  quartz- 
ite  and  an  overlying  shale ;  as  to  the  broken  and  crushed  condition 
of  the  limestone,  and  substantially  as  to  the  origin  of  the  metal  and 
its  deposition  in  the  rock.  In  nearly  all  other  respects  they  disagree. 
In  their  judgment,  the  zone  of  Hmestone  has  no  features  of  a  lode. 
It  has  no  continuous  fissure,  says  Mr.  King,  to  mark  it  as  a  lode.  A 
lode,  he  adds,  must  have  a  foot-wall  and  a  hanging-wall,  and  if  it 
is  broad,  these  must  connect  at  both  ends,  and  must  connect  down- 
ward. Here,  there  is  no  hanging-wall  or  foot-wall ;  the  limestone 
only  rests  as  a  matter  of  stratigraphical  fact  on  underlying  quartzite, 
and  the  shale  overlies  it.  And  distinguishing  the  structure  at  Ruby 
hill  from  the  Comstock  lode,  the  same  witness  says  that  the  one  is 
a  series  of  sedimentary  beds  laid  down  in  the  ocean  and  turned  up ; 
the  other  is  a  fissure  extending  between  two  rocks. 

The  other  witnesses  of  the  defendant,  so  far  as  they  have  ex- 
pressed any  opinion  as  to  what  constitutes  a  lode,  have  agreed  with 
the  views  of  Mr.  King.  It  is  impossible  not  to  perceive  that  these 
gentlemen  at  all  times  carried  in  their  minds  the  scientific  definition 
of  the  term  as  given  by  geologists,  that  a  lode  is  a  fissure  in  the 
earth's  crust  filled  with  mineral  matter,  and  disregarded  the  broader, 
though  less  scientific,  definition  of  the  miner  who  applies  the  term 
to  all  zones  or  belts  of  metal-bearing  rock  lying  within  clearly  marked 
boundaries.  For  the  reasons  already  stated,  we  are  of  opinion  that 
the  acts  of  congress  use  the  term  in  the  sense  in  which  miners  un- 
derstand it. 

If  the  scientific  definition  of  a  lode,  as  given  by  geologists,  could 
be  accepted  as  the  only  proper  one  in  this  case,  the  theory  of  distinct 
veins  existing  in  distinct  fissures  of  the  limestone  would  be  not  only 
plausible,  but  reasonable ;  for  that  definition  is  not  met  by  the  condi- 
tions in  which  the  Eureka  mineralized  zone  appears.  But  as  that 
definition  cannot  be  accepted,  and  the  zone  presents  the  case  of  a 
lode  as  that  term  is  understood  by  miners,  the  theory  of  separate 
veins,  as  distinct  and  disconnected  bodies  of  ore  falls  to  the  ground. 
It  is,  therefore,  of  little  consequence  what  name  is  given  to  the  bodies 
of  ore  in  the  limestone,  whether  they  be  called  pipe  veins,  rake  veins 
or  pipes  of  ore,  or  receive  the  new  designation  suggested  by  one  of 
the  witnesses,  they  are  but  parts  of  one  greater  deposit,  which  per- 


LODES    OR   VEINS    AND   THEIR   APEXES.  II 

meates,  in  a  greater  or  less  degree,  with  occasional  intervening  spaces 
of  barren  rock,  the  whole  mass  of  limestone,  from  the  Jackson  mine 
to  the  Richmond,  inclusive. 

The  acts  of  congress  of  1866  and  1872  dealt  with  a  practical  neces- 
sity of  miners ;  they  were  passed  to  protect  locations  on  "veins"  or 
"lodes,"  as  miners  understood  those  terms.  Instances  without  num- 
ber exist  where  the  meaning  of  words  in  a  statute  has  been  enlarged 
or  restricted  and  qualified  to  carry  out  the  intention  of  the  legisla- 
ture. The  inquiry,  where  any  uncertainty  exists,  always  is  as  to 
what  the  legislature  intended,  and  when  that  is  ascertained  it  con- 
trols. In  a  recent  case  before  the  supreme  court  of  the  United  States, 
singing  birds  were  held  not  to  be  live  animals,  within  the  meaning  of 
a  revenue  act  of  congress.  Reiche  v.  Smythe,  13  Wall.  [80  U.  S.] 
162.  And  in  a  previous  case,  arising  upon  the  construction  of  the 
Oregon  donation  act  of  congress,  the  term,  "a  single  man,"  was  held 
to  include  in  its  meaning  an  unmarried  woman.  Silver  v.  Ladd,  7 
Wall.  [74  U.  S.]  219.  If  any  one  will  examine  the  two  decisions, 
reported  as  they  are  in  Wallace's  Reports,  he  will  find  good  reasons 
for  both  of  them. 

Our  judgment  being  that  the  limestone  zone  in  Ruby  hill,  in  Eureka 
district,  jxi^g  between  the  quartzite  and  the  shale,  constitutes,  with- 
in the  meaning-  of  the  acts  of  congress,  "one  lode  of  rock  bearing, 
metal,  we  proceed  to  consider  the  rights  conveyed  to  the  parties  by 
tneir  respective  patents  from  the  United  States.     *     *     * 

Here  neither  the  plaintiff  nor  defendant  could  pass  outside  of  the 
end  lines  of  its  own  locations,  whether  they  were  made  before  or  after 
those  upon  which  the  other  party  relies.  And  inasmuch  as  the  ground 
in  dispute  lies  within  planes  drawn  vertically  downward  through  the 
end  lines  of  the  plaintiff's  patented  locations,  our  conclusion  is  that 
the  ground  is  the  property  of  the  plaintiff,  and  that  judgment  must 
be  for  its  possession  in  its  favor. 

The  sam«  conclusion  would  be  reached  if  we  looked  only  to  the 
agreement  of  the  parties  made  on  the  sixteenth  of  June,  1873.  At 
that  time  the  plaintiff  owned  the  patented  claim  called  the  Lookout 
claim,  adjoining  on  the  north  the  Richmond  claim.  The  defendant 
had  worked  down  from  an  incline  in  the  Richmond  and  Tip-top  into 
the  ore  under  the  surface  lines  of  the  Lookout  patent.  The  plaintiff 
thereupon  brought  an  action  for  the  recovery  of  the  ground  and  the 
ores  taken  from  it.  A  compromise  and  settlement  followed  which 
are  contained  in  an  agreement  of  that  date,  and  were  carried  out  by 
an  exchange  of  deeds.  A  map  or  plat  was  made  showing  the  differ- 
ent claims  held  by  the  two  parties.  A  line  was  drawn  upon  this  map, 
on  one  side  of  which  lay  the  Champion,  the  At  Last  and  the  Margaret 
claims,  and  on  the  other  side  lay  the  Richmond  and  the  Lookout 
claims.  By  the  agreement  of  the  parties,  the  plaintiff  on  the  one 
hand,  was  to  convey  to  the  defendant  the  Lookout  ground,  and  also 
all  the  mining  ground  lying  on  the  north-westerly  side  of  the  Hne 


12  PRELIMINARY   DEFINITIONS. 

designated,  with  the  ores,  precious  metals,  veins,  lodes,  ledges,  de- 
posits, dips,  spurs  or  angles  on,  in  or  under  the  same,  and  to  dismiss 
all  pending  actions  against  the  defendant ;  and  on  the  other  hand,  the 
defendant  was  to  pay  to  the  plaintiff  the  sum  of  $85,000,  and  to  con- 
vey, with  warranty,  against  its  own  acts,  all  its  right,  title  or  inter- 
est, in  and  to  all  the  mining  ground  situated  in  the  Eureka  mining 
district  on  the  south-easterly  side  of  the  designated  line,  and  in  and 
to  all  ores,  precious  metals,  veins,  lodes,  ledges,  deposits,  dips,  spurs 
or  angles,  on,  in  or  under  the  same.  "It  being,"  says  the  agreement, 
''the  object  and  intention  of  the  said  parties  hereto  to  confine  the 
workings  of  the  party  of  the  second  part  (the  Richmond  Mining 
Company),  to  the  north-westerly  side  of  the  said  line  continued 
downward  to  the  center  of  the  earth,  which  line  is  hereby  agreed 
upon  as  the  permanent  boundary  line  between  the  claims  of  the  said 
parties." 

The  deeds  executed  between  the  parties  the  same  day  were  in  ac- 
cordance with  this  agreement.  The  deed  of  the  Richmond  Mining 
Company  to  the  plaintiff  conveyed  all  the  mining  ground  lying  on 
the  south-easterly  side  of  the  designated  line,  "together  with  all  the 
dips,  spurs  and  angles,  and  also  all  the  metals,  ores,  gold  and  silver- 
bearing  quartz,  rock  and  earth  therein,  and  all  the  rights,  privileges 
and  franchises  thereto  incident,  appendant  and  appurtenant,  or  there- 
with usually  had  and  enjoyed." 

The  line  thus  designated  extended  down  in  a  direct  line  along  the 
dip  of  the  lode  would  cut  the  Potts  chamber,  and  give  the  ground 
in  dispute  to  the  plaintiff.  That  it  must  be  so  extended  necessarily 
follows  from  the  character  of  some  of  the  claims  it  divides.  As  the 
Richmond  and  the  Champion  w^ere  vein  or  lode  claims,  a  line  divid- 
ing them  must  be  extended  along  the  dip  of  the  vein  or  lode,  so  far 
as  that  goes,  or  it  will  not  constitute  a  boundary  between  them.  All 
lines  dividing  claims  upon  veins  or  lodes  necessarily  divide  all  that 
the  location  on  the  surface  carries,  and  would  not  serve  as  a  boundary 
between  them  if  such  were  not  the  case.  The  plaintiff  would,  there- 
fore, be  the  owner  of  the  ground  in  dispute  by  the  deed  of  the  de- 
fendant, even  if  it  could  not  assert  such  ownership  solely  upon  its 
patented  locations.  Our  finding,  therefore,  is  for  the  plaintiff,  and 
judgment  must  be  entered  thereon  in  its  favor  for  the  possession  of 
the  premises  in  controversy.^ 

'The  Richmond  Mining  Company  took  an  appeal  and  writ  of  error  in  these 
cases,  and  the  decision  was  affirmed  bv  the  supreme  court.  Richmond  Min.  Co. 
V.  Eureka  Consol.  Min.  Co..  103  U.  S.'839,  26  L.  ed.  557.  That  court  held  that 
the  rights  of  the  parties  were  conclusively  fixed  by  the  compromise  agreement 
of  June  16,  1873. 


LODES    OR   VEINS   AND   THEIR   APEXES.  13     (^-*^t  ' 

STEVENS  ET  AL.  V.  WILLIAMS  et  al.    ^^"^^^"^  ^""^    ^ 

1879.     Circuit  Court,  D.  Colorado.         f^Vn  w  CL-</V»-^Kj 

23  Fed.  44,  I  ^lorr.  Min.  Rep.  557,  Carp.  Min.  Code,  6$.   ^TTr-i  ^    vj^ 

Hallett,  District  Judge  (charging  jury).* — The  first  matter  fo  jsy  -fj*. 
which  I  shall  ask  your  attention  is  that  the  reference  in  the  law  is        ,  ^^ 
to  veins  or  lodes  in  place,  bearing  any  valuable  metals,  which  are  here  V    T^ 
spoken  of.   The  language  of  the  act  is,  mining  claims  upon  veins  or  ^  ^^' 
lodes  of  quartz  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  /C 

lead,  tin,  copper,  or  other  valuable  deposits.  That  is  the  language  of  rU^  C^ 
the  act  used  in  describing  the  kind  of  mines  or  valuable  deposits  i 

which  may  be  taken  out  under  the  act,  and  the  peculiar  feature  of  '  *^^  '^ 
that  description  to  which  I  wish  to  call  your  attention  is  that  they  u>^  J^ 
are  lodes  or  veins  in  place.   The  exact  language,  as  I  before  read,  is  x^ 

"veins  or  lodes  ofj:jjiartz  or_ other  rock";  that  is,  veins  or  quartz  or VJ<''^-\^ 
otKeTrocCorlodes  of  quarts  "of  ottie'r  rock  (the  last  words  being  [-"^j-^..,^ 
added  to  the  first  by  way  of  description),  that  may  contain  any  of  J  . 

these  valuable  metals.   That  is  to  say,  any  kind  of  rock  bearing  any  LTU^ 
of  these  metals,— but  whatever  the  rock,  whether  it  be  quartz  or  i^^j^_^ 
other  rock,  it  must  be  in  place.    And,  as  to  the  meaning  of  these 
words,  "in  £lacsZl  ^^"^^^  ^^^^  ^°  indicate  the  body  of  the  country  * 

which  ha1"not  been  affected  by^  the  action  of  the  elements ;  which  , 

may  remain  m  its  original  state  and  condition,  as  distinguished  from 
the  superficial  mass  which  may  lie  above  it.   There  are  quite  a  num-  v-  '^  ■  ^  j|^ 
ber  of  words  which  may  be  applied  to  that  superficial  deposit ;  that  ^.^^^jOi 
which  is  movable,  as  contrasted  with  the  immovable  mass  that  lies   ^ 
below,  such  as  alluvium,   detritus,   debris.    Perhaps  the  last  word  t.vs  [/>  ^^ 
comes  as  near  as  any  other  that  is  in  use — the  word  debris.   A  wit-  ^^  y 
ness  in  another  case  here  used  a  word  which  he  appeared  to^  have  A 

invented  for  the  occasion,  which  appeared  to  me  particularly  s'lgmfi- cJ^Jj^^ 
cant;  he  called  it  "tumble  stuff,"  which  conveys  to  my  mind  pretty  [1   .  * 
distinctly  the  idea  of  that  which  may  have  been  brought  to  its  posi-  <KM^^ 
tion  by  the  action  of  the  elements,  as  distinguished  from  the  vast  ^    ^  ^"• 
body  of  earth  which  lies  below.   In  speaking  of  these  deposits,  which       * 
are  in  veins  or  lodes,  and  of  the  general  mass  of  rock  from  which  ^Af«>- 
they  may  be  distinguished,  miners  usually  call  tlie  surrounding  mass  ^    y^ 
of  rock.'in  which  the  lodes  or  veins  are  found,  the  "country"  or  the  *7    '^ 
"country  rock."  By  that  word  they  signify  the  character  and  descrip-  jS/j ,  ^, 
tioh  of  the  general  body  of  the  mountain,  whether  it  is  granite,  or 
gneiss,  or  syenite,  or  porphyry,  or  any  other  of  the  many  different 
kinds  of  rock.   They  use  that  word  to  describe  the  general  mass  of 
rock  of  which  the  mountain  is  composed,  as  distinguished  from  that 
which  is  found  in  the  vein  or  lode.    And  wJieiLjiLls_act_spea,ks.,of 
veins  or_lodesJlL place,  it  means  such  as  lie  in  a  fixed  position  in^the  / 


*  Parts  of  the  charge  to  the  jury  are  omitted. 


^  A-ttxjL-  y<Mn^^  ^aA^  =uu^>Tv..ArWi^  U  i^^-j^^-  -^  vw*.,*^- 

V  PRELIMINARY    DEFISSTITIONS^  "^  "^ 


r^ 


Wttii 


14    '^  V  PRELIMINARY   DEFINITION 


xi.*  general  mass  of  country  rock,  or  in  the  general  mass  of  the  moun-t^ 
^^    *i"  'j;ain.  As  distinguished  from  the  country  rock,  this  superficial  deposit ) 
>)     ^      may  have  been  brought  into  its  present  position  by  the  elements ; 
L, -tf^     niay  have  been  washed  down  from  above ;  or  may  have  come  there 
^  as  alluvium  or  diluvium,  from  a  considerable  distance.    Now,  when- 

""Cy^     ever  we  find  a  vein  or  lode  in  this  general  mass  of  country  rock,  we 
jf-  N  /      may  be  permitted  to  say  that  it  is  in  place,  as  distinguished  from  the 
^      superficial  deposit,  and  that  is  true,  whatever  the  character  of  the 
^       deposit  may  be ;  that  is  to  say,  as  to  whether  it  belongs  to  one  class  ^/[j. 
"/)  of  veins  or  another ;  it  is  in  place  if  it  is  held  in  the  embrace,  is  in-   * ^ 
"'''^  ^*x  closed  by  the  general  mass,  of  the  country.    And,  as  to  the  word  v». 
'  L^  #-v   "vein"  or  ''lode,"  it  seems  to  me  that  these  words  may  embrace  anyv^if^ 
'y\        description  of  deposit  which  is  so  situated  in  the  general  mass  of  the^  ^(^ 
•vJV.'i  (^  country,  whether  it  is  described  in  any  one  way  or  another ;  that  is  N  ^ 
f*"^    .     to  say,  whether,  in  the  language  of  the  geologist,  we  say  that  it  is  a^J''"^ 
'^^^      bed,  or  a  segregated  vein,  or  gash  vein,  or  true  fissure  vein,  or*^^^ 
'C--*-*^      merely  a  deposit ;  it  matters  not  what  the  particular  description  of  ii^sa 
may  be ;  in  respect  to  these  distinctions  which  are  observed  by  geolo-  ^^  ^ 
^^        gists  in  defining  the  different  classes  of  deposits  that  lie  in  the  em-  \V* 
Ia^  ^    brace,  or  are  inclosed  by,  the  general  mass  of  the  mountain.    In  all 
cases  I  suppose  that  they  are  lodes,  if  not  veins.   It  may  be  true  that 
many  of  these  deposits  will  not  come  under  the  description  of  veins, 
as  known  to  geologists,  but  if  they  are  not  so  described, — if  they 
cannot  be  so  correctly  described, — they  are,  at  least,  lodes,  and  are 
^x.,^^     recognized  as  such  by  miners  in  their  search  for  them.    In  other 
.        '  words,  whenever  a  miner  finds  a  valuable  mineral  deposit  in  the  body 
r**^  l»-^  of  the  earth,  as  I  have  described  it,  he  calls  that  a  lode,  whatever  its 
y/      *'     form  may  be,  and  however  it  may  be  situated,  and  whatever  its  ex- 
^^' '      tent  in  the  body  of  the  earth.   The  books  make  some  distinctions  be- 
s  <^,      tween  beds  and  lodes,  and  they  make  distinctions  in  the  different 
L  r-         classes  of  veins,  as  you  have  heard  from  counsel,  but  these  distinc- 
^       ■       tions  are  not  important  in  relation  to  this  answer  of  the  discovery 
i-^         and  taking  of  these  mineral  deposits.    It  has  been  decided  that  con- 
gress, in  passing  this  act,  intended  by  this  description  to  embrace 
r-     and  include  all  forms  of  deposit  which  are  located  in  the  general 
^  j,^,^    mass  of  the  mountain,  by  whatever  name  they  may  be  known,  and 
^^^    the  distinctions  which  are  adopted  by  geologists  in  respect  to  the 
^    I      different  kinds  of  veins  are  not  important  except  for  one  question 
kh&U'lXjirKl  for  one  purpose,  which  I  may  invite  your  attention  to  further  on. 
iC-c!^'  ^^  ^^^^^  ^^'^  "'■'^y  ^'^y'  gentlemen,  with  respect  to  the  case  which  is 
i^^        '  now  before  you,  that,  whether  this  may  be  called  a  true  vein  or  a 
r^^       contact  vein,  or  a  bed  ;  whether  it  lies  with  the  stratification  or  trans- 
(L     ^_    verscly  to  it,  the  matter  is  of  no  importance  for  the  purpose  of  de- 
t^      termining  this  question ;  it  is  in  any  event  a  lode,  if  it  lies  in  place, 
■^^  "^Y  within  the  meaning  of  this  act.     And  it  is  in  place  if  it  is  inclosed 
^   i^      and  embraced  in  the  general  mass  of  the  mountain,  and  fixed  and 
j^  immovable  in  that  position.    Perhaps  I  ought  to  say  further,  in  view 

tw^  J>  '■-,  i^^tti^yO^^   4-nj>^  ur^v»r  ^r-H^ 


t*    P  n^.^  k^w^w^ +I^.i2^  t^^.H*v-^^^  VVutHH  W4p 

^  *  LODES    OR   VEINS    AND   THEIR    APEXES.  '         4  ^S  4«»  T 


not  material  as  to  the  character  of  the  vein  matter,  whether  it  is  vJ/^-L^ 
loose  and  disintegrated,  or  whether  it  is  solid  material.  In  these  fli^, 
lodes  the  earth  that  is  found  in  them,  the  earthly  matter  which  may  S  P"**'  ^ 
be  washed  or  treated  with  water  or  steam,  is  often  the  most  valuablexf^  __ 
part.  It  was  never  understood  here  or  elsewhere,  so  far  as  I  know,  ^"^ 
that  such  earthy  matter  was  not  embraced  in  the  location,  because  it  r*-*^*^ 
was  of  that  character.  It  is  the  surrounding  mass  of  country  rock ;  / _^  ^V 
it  is  that  which  incloses  the  lode,  rather  than  the  material  of  which  ^Vt' 
it  is  composed, — which  gives  it  its  character ;  so  that  even  if  it  be  0^  "^  P 
true,  as  counsel  have  stated  in  the  course  of  their  arguments,  that 4^  ^t^. 
this  is  mere  sand, — is  a  loose  and  friable  material  which  cannot  be 
called  "rock,"  in  the  strict  definition  of  that  word ;  if  that  be  true,  I'^'AO*^ 
it  does  not  afifect  the  character  of  the  lode.  If  it  were  all  of  that  ^  y>r\i> 
character,  it  would  still  be  in  a  vein  or  lode  in  place,  if  the  wall  on  ^  V  .  , 
each  side — the  part  which  holds  the  lode — is  fixed  and  immovable.^  U^.^  J^-^ 


^  In  Hyman  v.  Wheeler,  29  Fed.  347,  353-354,  Hallett,  J.,  in  charging  a  jury, 
in  a  case  where  the  owner  of  the  Durant  mining  claim  was  asserting  that  the 
owners  of  the  Emma  mining  claim  were  working  in  the  Emma  a  vein  which 
apexed  in  the  Durant  said : 

"In  the  books,  and  among  miners,  veins  and  lodes  are  invested  with  many 
characteristics, — as  that  they  lie  in  fissures  or  other  openings  in  the  country 
rock;  that  they  contain  materials  differing,  or  in  some  respects  corresponding, 
I  with  the  country  rock ;  that  they  are  of  tabular  form,  and  of  a  banded  struc-  q.  JL  <^ 
'  ■  ture ;  that  some  one  or  several  things  are  commonly  associated  with  the  valu-  \^  '"^^ 
/Y  able  ores;  that  they  have  selvages  and  slickensides  in  the  fissures  and  open- r  0  "f^j^  \ 
**      ings,  and  the  like.     It  is  not  necessary  to  enumerate  all  the  features  by  which  A  ' 

*i/*nhey  are  known.     Some  of  these  characteristics  are  said  to  be  common  to  all  c^OTl/^ 
fly^lodes  and  veins,  and  others  of  rare  occurrence ;  but,  in  general,  witnesses  will  . 

take  up  one  or  more  of  them  as  essential  features  of  a  lode  or  vein,  and  de-  V**A  ^A  ^ 
i^*'clare  the  fact  upon  the  presence  or  absence  of  such  elements.    A  party  seeking    *      J^ 
»  ^  to  prove  the  existence  of  a  lode  or  vein  will  naturally  rely  on  any  such  charac-  ^^, 

\\    teristic  that  he  can  find  in  the  ground  in  dispute,  and  call  w^itnesses,  who  will   /(>%' C'^*^> 
",  »>j.  accept  that  feature  as  establishing  the  fact.     The  party  opposed  will  seek  to  0     < 

►v-,   disprove  the  pfoposition  advanced  against  him,  and,  in  addition,  to  show  that  h  C^i>-,j<t^ 
J\    all  other  characteristics  of  a  lode  or  vein  are  in  the  case  under  consideration  •  .  f^. 

'      entire!)'  wanting.    In  this  way  a  fierce  conflict  of  testimony  is  waged  as  to  thefl^f^^  »    ^ 
y^  existence  of  one  or  another  distinguishing  feature  of  a  lode  or  vein,  and  the  hjj^yi  H^^ 
^^    jury  is  asked  to  return  a  verdict  upon  the  issue  thus  made.     It  is  apparent,  \  '.      ^  ^ 
^Whowever,  that,  upon  any  issue  touching  the  existence  of  a  lode  or  vein  in  a  C  |Vvti>^ 
i#  ^place  designated,  a  question  whether  it  has  one  characteristic  or  another  is  a    *    » 
?^     'part  only  of  the  main  question,  and,  in  the  presence  of  other  unquestioned  ele-   j    ft-vS.  ' 
ments  establishing  the  existence  of  a  lode  or  vein,  an  issue  of  that  kind  be-   p      , 
comes  immaterial.     To  illustrate  that  matter,  it  may  be  said  that,  with  ore  in   ■   ^-va-va 
vmass  and  position  in_tjie..body  of  a  mountaia»  ii€>-other  fact  is  required  to  prove  i         v 
•J    jilhe  existence  of  a  lode  of  the  dimensionsof  the  ore.    As  far  as  it  prevails,  the  L^-^J"  1^"%^ 
'^  I  pre  IS  a  lode,  whatever  its  form  or  structure  may  be,  and  it  is  not  at  all  neces-  ^       i  |* 
sarv'  to  decide  any  question  of  fissures,  contacts,  selvages,  slickensides,  or      "^^  P 
other  marks  of  distinction,  in  order  to  establish  its  character.    As  was  said  in  *t^  jrL^i 
another  case  in  this  court :  ^^wf  ^^ 

"  'A  body  of  mineral  or  mineral-bearing  rock,  in  the  general  mass  of  the    %Y^/»»Jt 
mountain,  so  far  as  it  may  continue  unbroken,  and  without  interruption,  may  '^  v 


'l6  PRELIMINARY   DEF: 


DEFINITIONS, 


That  is,  perhaps,  sufficient  as  to  the  character  of  the  deposit,  and 
^   C/i  that  which  may  be  located  in  the  manner  in  which  the  evidence  tends 

to  prove  that  the  location  was  made;  and  we  have  now  to  consider 
^"^^  the  question  which  was  so  much  discussed  by  counsel,  as  to  the  loca- 
vd^iS^  ^V  ^^^"  \^'^^'^  reference  to  the  top  and  apex  of  the  vein.  And  upon  that 
'  point  it  is  clear,  from  an  examination  of  the  act,  that  it  was  framed 

i>€  ^^*^*''  upon  the  hypothesis  that  all  lodes  and  veins  occupy  a  position  more 
'""''  or  less  vertical  in  the  earth,  that  is,  that  they  stand  upon  their  edge 
in  the  body  of  the  mountain;  and  these  words,  "top"  and  "apex," 
refer  to  the  part  which  comes  nearest  to  the  surface.  The  words 
used  are  "top"  and  "apex,"  as  if  the  writer  was  somewhat  doubtful 
as  to  which  word  would  best  describe  or  best  convey  the  idea  which 
he  had  in  his  mind.    It  was  with  reference  to  that  part  of  the  lode 


f?>K^r 


«.^|urc< 


be  regarded  as  a  lode,  whatever  the  boundaries  may  be.     In  the  existence  of 
such  body,  and  to  the  extent  of  it,  boundaries  are  implied.' 

"If,  therefore,  we  look  only  to  the  body  of  ore  developed  in  the  Emma  loca- 
tion, the  existence  of  which  is  not  denied,  and  assume  it  to  be  of  the  form  and 
^     f->,  *^'  ■    extent  developed  in  the  works,  there  is  no  difficulty  in  recognizing  it  as  a  lode. 
'  t.  Whether  it  is  in  the  form  of  a  broken  mass  of  blue  and  brown  lime,  between 

^  T*v»»^      regular  walls  of  the  same  rocks,  or  a  part  of  such  strata  in  solid  formation, 
mineralized  by  replacement  of  some  of  their  constituents  with  valuable  met- 
^-'t'Vv^        als,  the  result  is  the  same,  and  the  name  which  science  may  apply  to  it  is 

.  of  no  importance.  An  impregnation,  to  the  extent  to  which  it  may  be  traced  as!  \ 

^i)  '^^if  a  body  of  ore,  is  as  fully  within  the  broad  terms  of  the  act  of  congress  as  I 
.  V  ■  any  other  form  of  deposit.  In  discussions  at  the  bar,  and  in  the  opinions  of 
J\4<**-<f  witnesses,  it  was  assumed  that  the  character  of  a  body  of  ore,  as  coming 
.  within  or  falling  without  the  act  of  congress,  could  be  determined  by  classi- 
At,r^Ti^*  fying  it  as  a  segregated  or  contact  fissure  vein,  or  as  a  bed  or  impregnation  of 
v^^_,  ore;  and  that  it  was  a  matter  of  importance  to  ascertain  whether  the  ore  was 

^^"^ "  separated  from  the  country  rock  by  planes  or  strata  of  that  rock  visible  to 

t*^,^j6  the  eye.     I  see  no  reason  for  such  distinctions.     It  is  true  that  a  lode  must' 

'  have  boundaries,  but  there  seems  to  be  no  reason  for  saying  that  they  must  bei  j 

o    >-*-<        such  as  can  be  seen.  There  may  be  other  means  of  determining  their  existence,! 
and  continuance,  as  by  assay  and  analysis;  and  certainly  the  form  and  mode' 
^.^jNcw^/)  of  occurrence  of  valuable  ore,  however  controlling  and  influential  in  deter- 
»Thl  mining  its  geological  character,  is  not  a  matter  upon  which  it  can  be  excluded 

^•^^/♦•*-i^    from  the  terms  of  the  act  of  congress.    All  that  is  said  on  this  point  proceeds 
t  i-1       w      °"  ^^  theory  that  the  ore  developed  in  the  Emma  location  is  of  the  form  and 
Q^^^^  extent  there  appearing,  as  distinguished  from  the  mass  of  limestone  in  which 
C<cA^  <r--  ,  't  is  found ;  that  it  is  upon  the  line  of  contact  between  blue  and  brown  lime, 
and  that  such  line  of  contact  marks  its  presence  and  continuance  throughout 
the  works.    There  is  much  in  the  testimony  to  support  that  view.    That,  how- 
^     ever,  is  for  your  consideration,  to  be  decided  upon  the  weight  of  evidence. 
^     "If,  as  contended  by  defendants,  the  ore  of  that  mountain  is   distributed 
^^'v  ^^'-* 'throughout  the  blue  and  brown  limestones  somewhat  unequally,  but  neverthe- 
*     —        less  generally,  and  the  occurrence  of  rich  ore  in  the  Emma  works  is  fortuitous 
and  accidental,  other  consideratons  arise  of  which  it  is  not  necessary  to  speak 
at  length.     In  that  case  the  entire  body  of  blue  and  brown  limestone  is  taken 
4^  i'^-**-vto  be  ore-bearing  rock,  and  the  plaintiff  can  assert  no  claim  to  it  outside  his 
J<-.»>  own  location.    If  you  accept  that  view,  your  verdict  should  be  for  defendants. 

'^'-'    '     Bearing  in  mind  what  has  been  said,  if  you  decide  on  the  evidence  that  there 
/  is  a  lode  in  the  Emma  ground,  you  have  then  to  consider  whether  it  is  prac- 

tically continuous  from  thence  to  and  into  the  Durant  location,  with  an  apex 
or  outcrop  in  that  location."    ,       ^  ■  i  v 


-P^fl^ 


LODES    OR   VEINS   AND   THEIR   APEXES.  f  ^7jt>C«-4Ji     I 

which  comes  nearest  to  the  surface  that  this  description  was  used ;  a*^"'"'"^ 
probably  the  words  were  not  before  known  in  mining  industry, — at  Ql  C*tJ1 
least,  they  are  not  met  with  elsewhere,  so  far  as  I  am  informed.      'La*^ 
Perhaps  they  were  not  the  best  that  could  have  been  used  to  describe  ^'^•^^^^^ 
the  manner  in  which  the  lode  should  be  taken  and  located.    But,  Vv^-^^^C*^ 
whether  that  be  true  or  not,  they  are  in  the  act  of  congress,  and  there  -H'.^m^ 
seems  to  be  little  doubt  as  to  their  meaning ;  they  are  not  at  all  am-  ^ 
biguous.    In  some  instances  they  may,  perhaps,  refer  to  the  floe  of  {a-cs|i  i  "*■ 
the  lode ;  that  is  a  part  of  the  lode  which  has  been  detached  from  the  i* 
body  of  mineral  in  the  crevice,  and  flowed  down  on  the  surface ;  in  7*''*^*^^ 
others,  where  there  is  no  such  outcrop,  they  may  mean  that  partkviKJVy* 
which  stands  in  the  solid  rock,  although  below  a  considerable  body        ,.<^v 
of  the  superficial  mass  which  I  have  attempted  to  describe  to  you.  ^^'^^ 
We  are  all  agreed,  however  (the  courts  and  counsel,  every  one),  that ,^^^^yiaiy^> 
that  is  the  meaning  of  the  words ;  that  they  are  to  be  taken  in  some  J^ 

such  sense  as  that, — as  being  the  part  of  the  lode  which  comes  near-  Aav-iH* 
est  the  surface.''     *     =i=     *     Congress  seems  to  have  appreciated  the^;^'^   Oti 
fact,  which  is  known  to  all  miners,  that  there  are  very  few,  probably  ^sj^)^ 
no  lodes,  that  are  exactly  perpendicular  to  the  surface  of  the  earth ;  '^TV^     • 
they  incline  one  way  or  the  other, — that  is,  either  to  the  right  or  left,  '^  iy^  i 
— extending  along  the  course  of  the  lode.   It  seems  to  be  universally  LJ"*^  -*-- 
true  that  they  depart  from  the  perpendicular  in  one  direction  or  the^,,,,y>.^   ^ 
other,  and  if,  in  so  departing, — if,  in  their  downward  course  into  the  ji^^^^^vJI 
earth,  they  depart  from  their  side  lines,  or  the  planes  of  those  lines "      . 
extending  downward  vertically, — then  he  is  to  have  that  part  which  'K>«*<  *** 
lies  without,  as  well  as  within,  the  surface  lines.    The  language  of^^^^  jjj 
the  act  upon  that  point  is,  "of  all  veins,  lodes  and  ledges,  throughout  . 
their  entire  depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  ^''*'**\k  r* 
lines  extended  downward  vertically,  although  such  veins,  lodes  or  i^,^_y^ 
ledges  may  so  far  depart  from  the  perpendicular  in  their  course         \ 
downward,  as  to  extend  outside  the  vertical  side  lines  of  such  sur-  *•*'.''*  ^     '   ' 
face  location."    Nowj  it  was  said  with  reference  to  the  lode  which  is  -^  ,. .,    ■  *, 
now  in  litigation  liere, — the  position  was  taken  by  the  counsel  for  the 
(leiehdant .-— t hat  whenever,  in  its  departure  from.the  vertical  course,  ^  -         •  ^< 
it  reaches  an  inclination  which  is  greater  than  forty-five  degrees,  ,-    x 
tKaTtHen  it  is  no  departure  from  the  perpendicular,  but  from  a  hor-  'v   • 
izonjtal.  plane;  and  therefore  it  is  not  within  the  terms  of  the  act.  *VT^  IS 
That  position,  gentlemen,  is  merely  a  verbal  distinction,  which  goes  ^     '  ~^    r 
for  nothing  at  all.    Of  course,  in  its  departure,  it  may  depart  in  any"-      '""■*   l 
degree  up  to  the  horizontal  plane,  and  it  is  still  a  departure  from  the  V'^<.'">J'«^ 
perpendicular  throughout  the  whole  course,  until  it  comes  to  a  right  i  ; 

f t^R    p 

^  "And  first  we  may  say,  by  way  of  definition,  that  the  top  or  apex  is  the  iV<cX»v 
end  or  edge  or  terminal  point  of  the  lode  nearest  the  surface  of  the  earth.    , 
It  is  not  required  that  it  shall  be  on  or  near  or  within  any  given  distance  of   Ww    V"^-* 
the  surface.    If  found  at  any  depth,  and  the  locator  can  define  on  the  surface  /       v       / 
the  area  which  will  enclose  it,  the  lode  may  be  held  by  such  location." — Hallett,  MJ*!^*^  \ 
J.,  in  Iron  Silver  Min.  Co.  v.  Murphy,  3  Fed.  368,  373.  n-A^  L.hj=4  "i  tr4 

2— Mining  Law  tJwfvw».'U-s-*^  7  Vv\  *'\>^-J\^^tU^  18*.^^^   f^ 


r 


PRELIMINARY    DEFINITIONS. 


angle  from  the  perpendicular.    *    *    *    I  agree  that  if  we  should 

ever  find  a  lode  which,  in  its  course,  extends  precisely  on  the  plane 

^-T^r    •     of  the  horizon, — and  it  is  extremely  doubtful  whether  we  shall  ever 

■_j-wY  •     fi^d  O"^  i"  that  position, — but  if  we  should  ever  find  a  lode  which  is 

»,•    *     precisely  in  that  position,  there  may  be  some  difficulty  in  locating 

t  fl^^S^it  under  this  act.     *     *     * 

(g^  4t„<A^     This  brings  us  to  a  question,  gentlemen,  which  really  is  the  import- 
»  ^  ant  question  in  this  case,  and  that  is  whether  there  is  any  lode  in  the 

"^    position  which  has  been  mentioned  by  the  witnesses ;  and  in  that  con- 
J>^^*^    nection,  in  the  consideration  of  that  question,  the  character  of  the 
,^/Vv^      deposit — as  to  whether  it  is  a  true  fissure  vein,  or  a  contact  deposit, 
i»       '    or  a  bed,  or  something  of  that  kind — is  of  some  value ;  because,  in 
^  Q^ "       respect  to  fissure  veins,  we  accept  the  cavity  or  chasm  which  is  found 
<^  f^^   between  walls,  and  filled  with  what  they  call  "vein  matter,"  as  indi- 
1  ^^       eating  or  showing  the  existence  of  the  lode,  even  if  the  matter  which 
, ->.  is  found  in  it  is  not  very  valuable, — that  is,  if  there  is  anything  which 

'*^  ^^     usually  accompanies  valuable  ores  or  minerals.     But,  in  respect  to 
kA     this  kind  of  deposit,  my  impression  is  that  it  is  to  be  known,  called, 
^jt  and  regulated  as  an  irregular  deposit;  one  which,  if  it  should  be 
^'^   interrupted  for  any  considerable  distance, — that  is,  if  what  they  call 
U\Uv(|    the  "contact,"  or  junction  between  the  porphyry  and  lime,  should 
1    become  barren  for  a  considerable  distance, — that  it  should  no  longer 
^^U^    be  called  a  lode.     As  I  understand  it,  this  line  which  exists  when 
*^-*^~'     there  is  a  union  of  rocks  of  different  ages  and  different  formation, 
-X  _fv^  .  niay  carry  ore,  or  it  may  not ;  it  may  be  productive,  or  it  may  be 
A  .   ^     barren ;  and  if  this  should  be  found  at  any  point  in  the  course  to  be- 
'M.^r^^     come  barren,  and  remain  so  for  any  considerable  distance,  I  do  not 
}  ^  ^    see  how  it  could  be  called  a  lode  in  that  part  of  it,  so  that  it  could 
be  followed  with  the  result  to  claim  what  lies  beyond.    I  should  say, 
^^  that  with  reference  to  such  a  line  of  contact  between  rocks  of  differ- 

-•.s/''         ent  formation,  that  to  find  that  line  of  contact  in  one  place,  unless 
^*^    \    there  were  in  it  valuable  minerals  which  were  carried  along  with 
^^^*^  something  like  a  continuous  course  along  the  line  of  contact,  that 
"*   '.  .('  no  lode  would  be  discovered.   It  could  not  be  said  that  any  had  been 
found  until  such  minerals  were  found.  I  do  not  mean  by  this,  that  any 
•  slight  interruption  for  a  few  feet  of  the  valuable  part  of  the  ore 
/'would  have  the  effect  to  show  that  the  deposit  was  broken  in  its  con- 
tinuousness.    I  do  not  mean  that,  nor  do  I  mean  that  if  any  dyke  or 
other    extraordinary    foreign   matter    should    be   interposed    in    the 
course  of  the  lode  so  as  to  cut  it  off,  and  it  should  follow  on  imme- 
diately after  that  interruption,  that  would  be  regarded  as  such  a  dis- 
placement in  the  continuity  of  the  deposit  as  would  deprive  it  of  its 
\  regular  character.     Phillpotts  v.  Blasdel,  8  Nev.  6i.     Whenever  it 

may  appear  that  the  fissure  has  existed  at  one  time,  or  at  any  time, 
with  a  continuous  body  of  ore  in  it,  which  may  have  been  interrupted 
by  some  subsequent  convulsion,  the  character  of  the  deposit  would 
remain  the  same  as  if  the  interruption  had  never  occurred.     But  if 


\ 


/^  '       O  LODES   OR   VEINS   AND   THEIR    APEXES.    ^  I9    r       vK   ^^ 

there  was   such  an   intervening  space  in  the   "contact,"   as   these  ^'*<*"*'^'*^ 
witnesses  call  it,  barren  in  its  continuity,  as  might  show  a  separate  l,,vi^^u^ 

c^'jjid  distinct  body  of  ore,  which  had  always  been  such,  I  should  say  -»CM*V^^ 
that  it  would  not  pass  with  the  grant  of  the  first.    It  may  help  you,  g  4 

gentlemen,  for  me  to  express  this  in  other  language,  and  ask  you  to  ^"^^ySi 
extend  the  line  which  is  laid  down  on  that  map  (showing),  for  some  ^■**^  »*>  < 
distance  further,  and  to  suppose  that,  in  the  course  of  that  line,  you  •— '^su*^  X 
find  that  there  is  at  the  head  of  the  deposit,  that  nearest  the  surface,  w%,;v^V  S 

I      a  hundred  feet  or  more  of  continuous  ore  lying  upon  the  line  between  l.^^.^  »jgj 
!    the  porphyry  and  the  lime,  and  then  there  should  be  an  interruption  v^    *; 

t     of  a  hundred  feet  or  more  of  this  contact  which  is  perfectly  barren  ',h)  j 

the  lime  and  the  porphyry  coming  together  carrying  nothing  what-  ^ 
ever,  and  below  that,  again,  another  body  similar  to  that  which  was 
found  at  the  head,  the  position  which  I  think  might  be  taken  upon 
this — the  position  of  these  ore  bodies — would  be  that  there  would 
be  two  lodes,  rather  than  one,  the  first  above  and  the  second  below ;  ,    v  -  :. 
but  if  there  is  a  continuous  body  of  ore,  or  practically  continuous,  and     .   ^  / 
there  is  no  such  interruption  as  exhibits  other  than  a  casual  and  for-  '  U,'*' 

tuitous  displacement,  then  it  would  be  one  lode.  ',    -. 

I  think,   upon  that  explanation,  gentlemen,  you  will  be  able  to    /|V^     j 
determine  whether  there  is,  in  that  sense,  a  fixed  body  of  ore,  extend-   ^     » 
ing  from  the  upper  part  of  these  workings  to  the  end  of  them;  if     Kt-^  t 
that  is  its  characteristic,  then  it  is  to  be  regarded  as  one  and  the  same  (2o<^^  ^ 
lode,  though  it  may  have  departed  from  the  side  line,  to  a  consider-  /     y^     . 
able  distance,  and  have  only  an  angle  of  thirteen,  fourteen  or  fifteen  i 

degrees,  as  the  witnesses  have  described  it,  from  the  plane  of  the  ^'''  "^t-*- 


JONES  ET  AL.  V.  PROSPECT  MOUNTAIN  TUNNEL  CO. 


^^'^M^e  ^ 


^jw^k!   21  Nev.  339,  31  Pac.  642.    j)"^^*"*^ 


1892.     Supreme  Court  of  Nev||daj    21  Nev.  339,  31  Pac.  642, 

Action  by  J.  E.  Jones  and  others  against  the  Prospect  Mountain  U/V^^^ 
Tunnel  Company  to  recover  the  price  of  ore  unlawfully  removed   -    -^        ^ 
from  complainants'  mine,  and  for  an  injunction  restraining  defend-  "    ' 
ant  from  removing  any  more.     Plaintififs  had  judgment  for  $5,000.  "t^->^    ^ 
and  an  injunction  was  granted.     Defendant  appeals.     Reversed.        u-.^H^ 

The    other    facts    fully   appear   in    the    following   statement   by  e^ 

Bigelow,  J. :     *     *     *  tU^  O 

At  the  plaintififs'  request,  the  court  gave  the  following  instruc-  i^  t^  f%. 
tions :    *    *    *  ,  i  1 

"No.  4.   A  vein,  lode,  ledge,  or  deposit,  within  the  meaning  of  the  ■'^'-v'trv/i 
law,  is  a  crack,  cavity,  or  fissure  in  the  earth  crust,  filled  with  rock  in  $v».  «Ha 
place,  bearing  gold,  silver,  or  other  valuable  mineral.     The  mineral  ^.«y.r>f^ 
or  rock  containing  the  mineral  must  be  in  place;  that  is  to  say,  in 


♦  Vrf    ^  20  ^  PRELIMINARY   DEFINITIONS. 

,_,^".  ...icCbs^  w  ••^^(;;)^/«€*'" 

the  place  where  it  was  originally   formed   or   deposited.     Loose, 

f-w  fc.-..^  broken  rock,  or  wash,  sand  or  gravel,  float  or  soil,  is  not  sufficient. 

1^  wrt.>^*    The  rock  containing  the  mineral  must  be  in  place  between  walls  or 

defined   boundaries.     The   rock   must   also   contain   valuable   min- 

.       eral."    *    *    * 

*       y^*  BiGELOw,  J.,  {after  stating  the  facts.)''  -•'  *  *  We  are  also  of  the 

.«i^Jt*         opinion  that  the  definition  of  what  constitutes  a  lode  was  erroneous, 

^^^  M  *    snd  while  in  many  cases  the  error  might  be  harmless,  it  was,  under 

»      t^Hr     ^^'^^  circumstances  existing  here,  prejudicial  to  the  defendant.    A  cer- 

^ .  tain  formation,  which  the  defendant  claimed  to  be  the  ledge,  had 

K  '^  been  traced  on  its  inclination  outside  the  plaintiffs'  boundaries,  and 

a  large  amount  of  work  there  done  upon  it.     If  this  was  the  ledge, 

as  the  defendant  claimed,  it  tended  to  show  that  its  apex  was  outside 

those  boundaries.    According  to  the  witnesses,  it  consisted  of  broken 

limestone,  boulders,  low-grade  ore,  gravel,  and  sand,  which  appeared 

,  ,  to  have  been  subjected  to  the  action  of  water.   This  was  found  at  a 

Tj  *^t  ^f'^'^rdepth  of  several  hundred  feet,  and  where  there  seems  to  have  been  no 

■SCc^W'  question  that  it  was  within  the  original  and  unbroken  mass  of  the 

M^     mountain.     So  far  as  was  shown,  the  rock  on  either  side  was  fixed, 

]  I  solid,  and  immovable.     Mineral  matter  so  situated,  no  matter  where 

^       *^    it  was  originally  formed  or  deposited,  is  "in  place,"  within  the  mean- 

"tX-waJ    jfjg  Qf  ^|-|g  1^-^     The  manner  in  which  mineral  was  deposited  in  the 

-£^  places  where  it  is  found  is,  at  the  best,  but  little  more  than  a  matter  of 

.     ji  mere  speculation ;  and  to  attempt  to  draw  a  distinction  based  upon 

^        '        the  mode  or  manner  or  time  of  its  deposit  would  be  utterly  im- 

^^  '1,  '''"practicable  and  useless.     The  question  was  long  ago  settled  by  the 

'*^'''*'  courts.    In  Stevens  v.  Williams,  i  Morr.  Min.  R.  557,  Hallett,  J., 

-r  -.  v.*!>-«i.v^id :  "And,  when  this  act  speaks  of  veins  or  lodes  in  place,  it  means 

i,,^^i<i,kW|KjM^uch  as  lie  in  a  fixed  position  in  the  general  mass  of  country  rock, 

^^  or  in  the  general  mass  of  the  mountain.    As  distinguished  from  the 

0  T'-^.     country  rock,  this  superficial  deposit  may  have  been  brought  into 
Ct/zi^*  w-^its  present  position  by  the  elements,  may  have  been  washed  down 

M  from  above,  or  may  have  come  there  as  alluvium  or  diluvium,  from 

►^  fX-^  a  considerable  distance.   Now,  whenever  we  find  a  vein  or  lode  in  this 

(/7^  -,  general  mass  of  country  rock,  we  may  be  permitted  to  say  that  it 

'  ,^l»  is  in  place,  as  distinguished  from  the  superficial  deposit,  and  that 

1  'M  '  is  true  whatever  the  character  of  the  deposit  may  be.  *  *  *  It 
,^^Af  is  in  place  if  it  is  held  in  the  embrace,  is  inclosed  by  the  general  mass, 
V     yfe^^  of  the  country."    Upon  the  second  trial  of  the  same  case,  (Id.  566, 

-V       I  McCrary,  480,)  Justice  Miller  said:  "And  there  I  want  to  say 
f'^^iT*^      that  by  'rock  in  place'  I  do  not  mean  merely  hard  rock,  merely  quartz 
rock,  but  any  combination  of  rock,  broken  up,  mixed  up  with  miner- 


/f.^. 


ydi.f 


als  and  other  things,  is  rock,  within  the  meaning  of  the  statute." 
And  again,  in  Mining  Co.  v.  Cheesman,  116  U.  S.  529,  537,  6  Sup. 
Ct.  Rep.  481,  the  court  said:  "Excluding  the  waste,  slide,  or  debris 


'  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 

^■^  ^'      ^7      or       H        ^^^ 


^Jfcin»i*>''>r»    t'!>'^ 'lodes   or   veins   and   THEIiT  APEXES.  21    ^»^    A^ 

on  the  surface  of  the  mountain,  all  things  in  the  mass  of  the  mountain  *^  r^ 
are  in  place."  See,  also,  the  same  case  in  the  circuit  court,  2  Mc-  ^'•^^t*^ 
Crary,  191,  8  Fed.  Rep.  297;  Hyman  v.  Wheeler,  29  Fed.  Rep.  353;  V^^^jJ^ 
Cheesman  v.  Shreeve,  40  Fed.  Rep.  787.    *    *    *  1^  t^ 

Judgment  and  order  refusing  a  new^  trial  reversed,  and  cause  re-  ""Sp^f) 
manded^^^r    ^^^  O^^V^r^  W^  (^  •  I A</>^  ^  0^  ff^u^t^^  >s^ 

^  (  <  STEVENS  ET  AU  V.  GILL  et  al.     ^^^^^  L,  r^^-l  Aj  itu>  ^ 

1879.     Circuit  Court,  D.  Colorado.   xjtCXXk^  c*-i-lj^    ?r^^ 
23  Fed.  12,  I  ]\Iorr.  Min.  Rep.  576.      t^.^^  hit^     JT^   * 


[This  was  an  action  at  law  by  William  H.  Stevens  and  others  w,^,^Jbrv 
against  Andrew  W.  Gill  and  others  to  determine  conflicting  claims  l.^.^^^ 
to  mining  property.]  ^  ^ 

Hallett,  District  Judge  (charging  jury).^  *  *  *  Xhe  plain- ^^i^,jt  ^ 
tiffs  claim,  by  their  declaration  or  complaint,  the  ground  which  is  Jl^^^^,.,_  |^ 
within  the  line  of  the  first  incline  on  the  Bull's  Eye  lode, — that  is  to  ^ 

say,  they  claim  that  the  defendants  have  ousted  them  from  that  por-  1^  h  *^ 
tion  of  the  lode  which  lies  within  the  Silver  Wave  location.    *    *    *  ■^nJ^  ^^ 
You  will  remember  I  asked,  at  the  close  of  the  testimony,  some  of  ^^f^„^ 
the  witnesses  to  give  the  distance  from  the  north  end  of  the  [Silver  ^  ^ 
Wave]  claim  to  the  first  and  second  incline,  and  to  the  shaft  on  the  f  " 
Bull's  Eye  claim  opposite  the  main  incline  on  the  silver  wave  work-  jri^..^^* 
ings.     These  distances  were  given :  To  the  first  incline,  45  feet ;  to  «,^^,„_^ 
the  second  incline,   135  feet;  and  to  the  shaft  opposite  the  Silver  .v 

Wave  workings,  250  feet.     Probably  the  theory  of  the  plaintiffs  is  .S*"*"*^ 
that  somewhere,  at  a  point  between  the  second  incline  of  the  Bull's  ^3*m^  r; 
Eye  and  the  main  incline  of  the  Silver  Wave,  or  at  the  shaft  opposite  jj^^^,^. 
that  incline,  the  lode  passes  from  their  ground  into  that  of  the  de-  jv^    ^j 
fendants ;  and,  as  I  said  before,  if  you  find  for  the  plaintiffs,  I  think  ^"^^ 
you  ought  to  determine  with  some  degree  of  certainty  what  that  t-*-'***  **/ 
point  is.  iH«^  V' 

Now,  you  have  observed,  in  general,  that  the  parties  here  have  "o^ca^M^fV 
controversy  as  to  the  surface  of  the  ground.    The  defendants'  loca-  .  j..^  j 
tion  lies  parallel  with  and  alongside  the  plaintiff's  location,  and  im-  ^  *^  *^ 
mediately  east  of  it.     So  far  as  the  ground  in  dispute  is  concerned,-..-^-.— .._ 
there  is  no  conflict  on  the  surface,  but  the  plaintiffs  claim  the  rightl     .        ^^ 

to  pursue  the  lode,  which  they  say  they  have  in  their  own  territory, | ^'^T* 

out  of  their  territory  and  into  that  the  defendants.     Upon  that  the  • 
principal  question  relates  to  the  top  and  apex  of  the  lode,  as  to  .  -. 
whether  it  is  within  the  plaintiff's  location  or  in  that  of  the  defend-  V,^ 

ants',  and  as  that  is  the  principal  point  in  the  case,  I  have  written 
what  I  wish  to  say  to  you  upon  that  subject  as  foH©^:  ^- — ...,-«^ 

^  Parts  of  the  charge  are  o^ni^iAg/^  .-/^Uy  ^77*  7\  N^\ 

^^^^  ^  ^     '^'^  \        ^ 


"^..^^^  PRELIMINARY   DEFINITIONS. 


^ 

4*^ 


'  ^'"^'"'^  ""■ — -Upon  the  evidence  before  you  it  may  be  assumed  that  there  is  a 
•.f  *--      lode  in  the  Silver  Wave  location,  and  the  principal  question  for  your 
*^^  V  4^^  consideration  is  to  determine  the  situation  of  the  top  and  apex  of  that 
^  -.     *      lode  with  reference  to  the  two  locations.    You  have  observed  that 
'^  the  claims  are  continuous  and  parallel  to  each  other,  the  defendants' 

.  claim  lying  immediately  east  of  that  owned  by  the  plaintiffs.    The  act 

"^  >     of  congress  provides  that  one  who  locates  and  acquires  title  to  a 

i^ T^\*«ii  vein  may  follow  it  to  any  depth  within  the  end  lines  of  his  location, 
j»^  /f       although  in  its  downward  course  it  may  enter  the  land  adjoining. 
*^^  9       And  so,  also,  as  to  all  other  veins  having  their  tops  within  the  sur- 
«   '  face  lines  of  the  location  extended  downward  vertically.     So  that  it 

,  '    i--L^^  often  a  question  whether  the  top  and  apex  of  the  lode  is  in  one 
**^  ^   place  or  another,  as  the  matter  of  ownership  may  turn  on  that  point 
l^i^    And  that  is  the  main  question  in  this  case,  for,  if  the  plaintiffs  hold 
^K    ,   the  top  and  apex  of  the  lode  in  their  ground,  they  may,  by  the  ex- 
'  ^"^^  jpress  language  of  the  act  of  congress  before  mentioned,  follow  it 
i^  ****♦**>■£ rom   their   own   territory   into   that   owned   by   defendants.     That 
"^t.^*^    proposition  may  be  stated  in  other  language,  as,  whether  the  lode  is 
[      .  to  be  found  in  plaintiffs'  ground,  and  thence  extending  eastward  into 

T     ^  defendants'  ground,  or  in  defendants'  ground  only.    On  that  general 

-^fjf       subject,  you  have  observed  that  the  witnesses  concur  in  saying  that 
the  line  of  contact  between  the  porphyry  and  lime  rock  extends  more 
or  less  definitely  into  plaintiffs'  territory  for  a  distance  of  about  lOO 
feet.    They  are  not  agreed  whether  the  porphyry  rock  overlying  the 
lime  is  in  massive  condition,  or  in  the  condition  of  slide  or  debris 
n.%V»«»'W't  on  the  surface  of  the  mountain.    Nor  are  they  agreed  whether  the 
f.  /material  found  between  the  lime  and  porphyry  is  of  the  country  rock 
or  vein  matter,  and  whether  it  is  of  value, 
^  Cjt/j-vo^*  It  will  serve  our  purpose  to  put  out  of  view  for  the  moment  those 
.  -  points  relating  to  this  line  of  contact  in  which  the  witnesses  are  not 

1^''       agreed,  and  consider  whether,  vipon  the  assumption  that  the  line 
^r\     4ud    of    contact    between    porphyry    and    lime    extends    from    plaintiffs' 
^  Li     ground  into  that  of  defendants',  without  more ;  that  is  to  say,  with- 
y^  out  anything  of  value  therein,  so  far  as  it  is  found  in  plaintiff's' 

\^^^     ground,  it  may  be  regarded  as  a  lode  or  vein,  within  the  meaning  of 
y^     '     I  the  act  of  congress.     And  that  is  easily  answered  in  the  negative. 
T*^^«><      For,  whatever  may  be  said  of  true  fissures,  it  must  be  conceded  that 
yi^^^ij-^  the  joinder  or  union  of  rocks  differing  in  character,  or  of  the  same 
character,  is  not  in  itself  a  lode  or  vein.     And  if,  in  some  space 
between  such  rocks,  there  is  found  material  which  sometimes  or  fre- 
jr    quently  exists  with  the  valuable  ore  in  lodes,  the  case  is  not  diff'crent. 
•^  As  to  all  such  contracts  and  all  such  deposits  as  are  found  in  the 

neighborhood  of  Leadvillc,  a  lode  cannot  exist  without  valuable  ore. 
But,  if  there  is  value,  the  form  in  which  it  appears  is  of  no  import- 
ance, whether  it  be  iron  or  manganese,  carbonate  of  lead,  or  some- 
fc   ,j         thing  else  yielding  silver,  the  result  is  the  same.    The  law  will  not 
^  distinguish  between  different  kinds  and  classes  of  ore,  if  they  have 


l/W^ 


ipUce    VU*-7  ^   S^  <hjri*-^u>  t-^jn/t^A^   AMtHU.v«L5  6ri!J»-«-U^ 

LODES   OR   VEINS   AND   THEIR   APEXES.  23     ^.^>tT^ 

appreciable  value  in  the  metal  for  which  the  location  was  made.  Nor  j^^^^^^^\. 
is  it  necessary  that  the  ore  shall  be  of  economical  value  for  treatment,  v 
It  is  enough  if  it  is  something  ascertainable,  something  beyond  a  VtS'"^^ 
mere  trace,  which  can  be  positively  and  certainly  verified  as  existing  ^^  U^ 
in  the  ore.  In  the  case  of  silver  ore  the  value  must  be  reckoned  by  uT^  ^  ^ 
ounces,  one  or  more  in  the  ton  of  ore,  and  if  it  comes  to  that  it  is  '^^ 
enough,  other  conditions  being  satisfied,  to  establish  the  existence  of  l^t/p^  ^ 

a  lode.  i.*Vji>C 

If,  therefore,  you  find,  from  the  evidence,  that  there  is  a  line  of  P'^'h'^''^ 
contact  between  porphyry  and  lime  in  plaintiff's  ground,  extending  U/:^*'^'^- 
thence  into  defendant's  ground,  and  in  some  space  on  that  line  there  ■/■j„n^A-\.^ 
is  a  material  differing  from  the  enclosing  rocks,  by  whatever  name    |^»j *</-(. 
that  material  may  be  called,  in  respect  to  whether  it  is  a  lode  or  vein,  *j^'t 
it  shall  be  judged  according  to  its  value.    And  this  is  true  whether  W^  ..** 
the  material  so  found  is  or  is  not  such  as  is  sometimes  or  often  ^'k^^ 
associated  with  valuable  ore  in  the  deposits  in  the  neighborhood  of 
Leadville,  whatever  the  rule  may  be  as  to  true  fissures  what  is  com-  jt^-^^^*^ 
monly  called  "the  contact"  is  not,  in  the  absence  of  valuable  ore,  to  be  tftAS*-/- 
regarded  as  a  lode  or  vein.    Nothing  will  be  said  in  this  connection        *,  ~,) 
as  to  what  rule  shall  be  applied  in  the  case  of  interruptions  in  the  ore  ^  ^jlT 
body,  or  barren  spaces  in  the  contact,  when  it  has  been  proven  to  be    t-c/>  it- 
of  value  to  some  extent  from  the  surface.     Because,  upon  the  evi-       tv^ 
dence  before  you,  whatever  your  conclusion  may  be  as  to  the  value 
of  the  material  in  "the  contact,"  you  will  probably  find  it  to  be  con-  (y-v^-*-  ^ 
tinuous  from  a  point  a  little  below  the  surface  in  the  first  incline    l^>»-*^    < 
down  to  that  place  in  defendants'  ground  from  which  valuable  ore  ^,.,,,vr^^ 
was  taken.    If,  then,  you  say  that  the  material  in  what  the  witnesses  ^^ 

call  "the  contact"  throughout  plaintiffs'  ground  is  not  of  appreciable  ^C^^-^-w 
value  in  silver,  within  the  rule  already  given,  there  is  no  lode  or  ^^w.Jf-0 
vein  in  that  place,  and  the  law  is  with  the  defendants.     On  that  7^_jvaj5 
point,  however,  the  evidence  is  contradictory.    And  if,  on  the  other  ^ 
hand,  vou  find  from  the  evidence  that  the  material  is  of  value,  and  ^^'V^^-^'**^ 
that  it  is  continuous  from  plaintiffs'  ground  into  that  owned  by  de-  fy-»>-*''*- 
fendants,  a  further  question  will  arise  as  to  whether  it  is  "in  place."  v^/'V*^ 
The  act  of  congress  speaks  of  veins  or  lodes  "in  place,"  by  which,  ^'      ,» 
according  to  our  interpretation,  it  is  required  that  the  vein  or  lode  ^^^  V^ 
shall  be  in  the  general  mass  of  the  mountain.    It  may  not  be  on  the  ^  j^ 
surface,  or  covered  only  by  the  movable  parts  called  "slide"  or  "de-  .     , 
bris."     But  if  it  is  in  the  general  mass  of  the  mountain,  although  lr\  f  Wj 
the  enclosing  rocks  may  have  sustained  fracture  and  dislocation  in   i/u-ftiiy*^ 
the  general  movement  of  the  country,  it  is  "in  place."    In  this  in-  k-v^? '>« 
stance,  it  is  claimed  by  defendants  that  the  porphyry  overlying  the  \       cJ 
lime  is  not  in  place  anywhere  in  plaintiff's  ground,  and,  if  that  be  t/J'vLj^ 
true,  it  cannot  be  said  that  the  lode  is  in  place,  if  one  exists  there,  r^..^^^^^ 
The  distinction  to  be  made  is  whether  the  porphyry  in  plaintiffs' 
ground  is  part  of  the  general  slide  and  debris  of  the  mountain,  or  yxrtMt 
stands  in  its  original  position  in  the  structure  of  that  formation.    It  «  Y'^. 


^tf*^\'    24  PRELIMINARY   DEFINITIONS. 

,^j/^  is  enough  if  it  is  found  in  place  at  any  point  west  of  plaintiffs'  east 
\^  line,  for,  in  this  instance,  the  lode,  if  there  is  one,  must  come  into 
■-*f^*^_  place  with  the  overlying  rock.  Upon  this  explanation,  if  you  are  able 
:  TVeot  tQ  s^y^  Qn  the  evidence,  that  there  is  a  lode,  and  that  it  is  in  place  in 
ij  **T^  plaintiffs'  ground,  and  that  it  descends  thence  into  defendants' 
|rV<«^  ground,  your  verdict  should  be  for  the  plaintiffs.  If  there  is  no  lode, 
y  »  u.  or  it  is  not  in  place  in  plaintiffs'  ground,  your  verdict  should  be  for 
l^t/\^\  ^]^g  defendants. 
;)„>r^  So  much,  gentlemen,  as  to  the  principal  points.     *     *     '•= 

^_^        As  to  the  weight  of  evidence  and  the  burden  of  proof,  I  have 
"^  been  asked  to  say  to  you,  and  I  say  accordingly,  that  it  is  upon  the 

"^V  plaintiffs.     It  is  upon  them  because  they  are  the  plaintiffs  in  the 

•y^  action,  and  they  are  required  to  prove  their  right  of  action  as  against 

>  ~)  ^  the  defendants ;  and,  also,  because,  in  cases  of  this  kind,  where  one 
'•^^*  party  seeks  to  go  out  of  his  own  territory  into  that  claimed  by  an- 
^  A.  other,  the  burden  is  upon  him  to  show  his  right  to  do  so, — that  is 
.  .  0  ^*-*  ^^y'  ^^  rnust  prove  by  a  preponderance  of  testimony  that  he  has 
^^'^'^  a  lode  within  his  own  territory,  and  that  he  has  the  top  or  apex  of  it, 
t^  A  in  order  to  go  out  of  his  own  territory,  in  pursuit  of  that  lode.  He  . 
ftrfj^AMfe^?*cannot,  otherwise,  claim  the  right  to  enter  ground,  or  enter  upon  the 
>  possession  of  it  not  within  his  own  location.  So  that,  upon  that,  the 
"^^  *^'  burden  is  upon  the  plaintiffs  to  show  to  you  by  preponderance  of 
.KjO  testimony,  if  I  may  so  express  it,  that  they  have  the  lode  within  their 
/I  ,  own  ground,  according  to  the  definition  which  I  have  given  you,  and 
Ay{k  'i^-f^hat  it  proceeds  from  thence  into  the  ground  claimed  by  the  defend- 
4  ffvA^^-    ants. 

*:  ^^^  A  further  question,  if  you  find  for  the  plaintiffs,  as  to  the  damages 
*  ^■^^^1:0  which  they  are  entitled :  They  have  claimed  in  their  complaint 
If^^  and  they  are  entitled  to  recover  if  they  own  the  lode,  for  the  ore 
removed  by  the  defendants  in  this  first  incline.  You  remember  what 
the  testimony  was  upon  that  subject.  You  remember  the  statements 
made  by  Mr.  Doyle,  and  about  his  statement  as  to  the  value  of  the 
ore  removed  by  the  defendants  from  that  incline ;  and  if  the  plain- 
tiffs are  entitled  to  that  ground,  they  are  entitled  also  to  recover 
the  value  of  that  ore. 

I  do  not  think  of  anything  more,  gentlemen,  which  it  may  be  im- 
portant to  say  to  you.  The  principal  question  for  your  consideration 
is  contained  in  this  writing  which  I  will  hand  to  vou,  and  you  may 
take  vvUh^o  ,_..  ^^^^^     ,     ^^  ^^. 


••♦^ 


^»~' 


LODES    OR   VEIXS   AND   THEIR   APEXES.  25  ftxt    t^ 

\y         DUGGx\N  AND  OTHERS  V.  DAVEY  and  others.      cp,f,„rtK      Cth-^ 
1886.     Supreme  Court  of  Dakota.     4  Dak.  no,  26  N.  W.  887.  t^  t)^ 

Church,  J.^ — This  was  an  action  in  eqtiity,  brought  by  the  pl^in- ^^^^^rx  f^  j 
tiffs,  as  owners  of  the  Silver  Terra  mine,  to  restrain  the  defendants 
from  prosecuting  certain  mining  operations,  by  which  it  was  alleged  T^'^Nr^ 
they  had  already  approached  and  were  threatening  and  intending  ^C-rk*-^^ 
to  enter  within,  the  lines  of  the  plaintiffs'  claim,  and  remove  certain  ^5*..^,^^'  ' 
valuable  bodies  or  deposits  of  silver  ore  therefrom.     The  complaint  j_^ 
alleged  ownership  by  the  plaintiffs  in  fee  of  the  Silver  Terra  mine,  T*''**-n^  . 
(mineral  claim  lot  No.  364,)  and  described  the  same  by  metes  and  \^  c/v^  > 
bounds.    It  also  stated  sufficient  grounds  for  equitable  relief  by  way  ^   «        . 
of  injunction,  and  prayed  (i)  for  the  usual  injunction  pendente  lite;  TUM-*^^ 
(2)  for  perpetual  injunction  at  the  final  hearing;   (3)   for  general  t— L  w*- 
relief.     A  preliminary  injunction  was  granted,  and,  upon  a  motion  ,  ^^V  »^  Wt 
to  dissolve,  was  continued  in  force.  Li  v  H  \ 

The  answer  of  the  defendants,  after  denying  "each  and  every  alle-  H^tt'  * 
gation  of  the  complaint,  except  as  hereinafter  specifically  admitted,"  f-Cov-^* 
proceeded  to  allege  with  great  particularity  of  detail  their  ownership   «         .( 
and  possession  of  a  certain  quartz  mining    claim  known  as  the  "Sit-  ^l****-!^ 
ting  Bull"  lode,  with  all  veins,  lodes,  or  ledges  of  valuable  mineral  C^^^t 
bearing  rock  in  place,  throughout  their  entire  depth,  having  their  /    ^    -. 
top  or  apex  within  the  exterior  surface  boundaries  of  said  Sitting -^  ""^^ .  ' 
Bull  lode  or  mining  location,  under  a  location  made  by  Donegan  and  ^^>t*JU 
Cochran,  grantors  of  defendants,  September  26,  1876:  a  relocation  )^j  rf-^ 
by  Donegan  and  Cochran,  March  16,  1877;  an  entry  for  patent  by  ''      '^ 
John  H.  Davey,  January  8,  1883;  and  continuous  and  uninterrupted  ^y^^^ 
possession  by  defendants  and  their  grantors.     The  answer  further  )  !^  ti   'H 
alleged  that  the  discovery  on  the  Sitting  Bull  lode  was  made  on  a  *   >•  ^ 
vein,  lode,  or  ledge  of  rock  in  place,  bearing  silver;  that  the  top  or  ^  vlTi 
apex  thereof  was  within  the  surface  lines  of  said  claim,  extended  C  {  1,  S  ^ 
downward  vertically ;  that  said  claim  was  located  along  the  said  vein  j.^  ^^^ 
or  lode ;  that  defendants,  in  working  and  developing  the  same,  had  o^^  >J^^ 
followed  it  for  a  distance  of  about  600  feet  from  the  top  or  apex  V  ^ 

thereof,  on  a  departure  from  the  perpendicular,  through  and  beyond  f^****^ 
the  vertical  southerly  side  line  of  the  Sitting  Bull  claim,  and  in  so  t/r  ''^''^^f 
working,  developing,  and  following  the  same  had  reached  a  point  on  ''l^-^^  T 
said  vein  or  lode  where  the  same  reached  or  passed  through  and  be-  Cy  h,  r** 
yond  the  vertical  northerly  side  line  of  the  Silver  Terra  claim;  that  ^^.J^JX'. 
throughout  its  entire  course,  as  so  worked,  developed,  and  followed  1   j^ , 
by  them,  the  ore  body  contained  in  said  vein  was  continuous,  without  Tt^^ 
break  or  interruption,  and  that  the  vein,  lode,  or  ledge  bearing  silver;  i>^  *^- 
upon  which  they  (the  defendants)  were  working,  as  alleged  in  the  ^^i^.^.^ 
complaint,  and  which  is  claimed  to  be  the  property  of  the  plaintiffs  by  (r  f-t^ 

Parts  of  the  opinion  are  omitted.  .      f^H^-vwC^  >-*^^    h  ^^-^  ^^  ^"^ ' 


•fc;} 


/  ©^26  y>^'  PRELIMINARY   DEFINITIONS. 

,  ---Virtue  of  their  Silver  Terra  mining  claim,  is  the  same  vein,  lode,  or 
„-"^  ledge  so  discovered,  worked,  developed,  and  followed  by  the  defend- 
r-^-^J^  ants  in  and  from  their  said  Sitting  Bull  location;  that  said  vein  at 
the  point  where  they  were  working  the  same,  as  alleged  in  the  com- 
plaint, lies  between  vertical  planes  drawn  downward  through  the 
^-^  end  lines  of  said  Sitting  Bull  location,  continued  in  their  own  direc- 
y^  tion ;  that  the  defendants  are  the  owners  of  said  vein,  in  possession 

t^/j<3 )    and  entitled  to  possession  thereof  at  said  point,  and  at  all  points 
^        within  the  Silver  Terra  claim ;  that  they  have  the  right  to  follow  the 
„^  same  so  long  as  it  shall  continue  to  be  continuous,  and  to  depart 

,  from  the  perpendicular,  and  that  as  such  owners  they  are  following 

^^"^^^^  *-  the  same,  and  claim  the  right  to  do  so,  within  the  vertical  side  lines 
jjr  .,  '  of  the  Silver  Terra  claim,  and  through  and  across  the  same ;  and  that 
^y^  plaintiffs  have  no  right,  title,  or  interest  in  or  to  said  vein,  or  any 
portion  thereof,  by  virtue  of  their  ownership  of  the  Silver  Terra 
j^  claim. 

1.  At  the  time  the  complaint  was  filed  plaintiffs  had  entered  the 

'-^^^^  Silver  Terra  for  patent.  Subsequently  a  patent  was  issued  to  them 
|«/t./  therefor,  and  thereafter,  by  leave  of  the  court,  they  filed  a  supple- 
Js  mental  complaint,  alleging — First.  The  issue  of  said  patent,  and  that 
'-*'^  it  was  based  upon  a  location  made  by  Daniel  Egan,  April  i,  1881, 
Tr'*^C  and  claiming  relation  of  title  and  possession  to  that  date.  Second. 
P  ^  Alleging  that  defendants  were  prosecuting  their  workings  under  a 
^^\  claim  of  right  so  to  do  as  the  proprietors  of  a  vein  having  its  top  or 
*^^  apex  within  the  Sitting  Bull  claim,  and  that  said  claim  and  pretense 
^^■^  were  false,  fictitious,  and  fraudulent,  and  defendants  without  right 
UuJU^  to  enter  and  commit  the  acts  complained  of,  and  that  plaintiffs  were 
ignorant  of  this  claim  at  the  time  their  original  complaint  was  made. 
J"^'  Wherefore  they  prayed  that  the  defendants  might  be  restrained  from 
^^  ^  setting  up  or  asserting  any  right,  title,  or  interest  in  or  to  their  said 
\  mining  ground,  or  the  ores,  metals,  or  minerals  contained  therein, 

^  on  account  of  said  alleged  vein  in  said  Sitting  Bull  claim. 

'C,>H-  For  answer  to  this  supplemental  complaint  the  defendants,  among 

.  >  other  things,  denied  any  knowledge  or  information  as  to  the  issuing 
i«*V<  ^"^^  of  the  patent  to  the  plaintiffs ;  denied  that  said  patent  was  based  upon 
y-,  a.  location  made  by  Egan,  April   i,   1881,  or  any  other  time;  and 

->     alleged  that  Egan  never,  at  any  time,  made  any  valid  location  of  said 
Silver  Terra  claim,  or  any  discovery  thereon  of  any  vein  of  quartz 
or  other  rock  in  place,  containing  valuable  mineral ;  and  that  the  pre- 
tenses of  Egan  and  the  plaintiffs  in  this  behalf  are  fraudulent  and 
unfounded.    They  further  reassert,  but  in  more  general  terms  than 
K*        in   their  previous   answer,   their   right   to   prosecute   the   work  of 
kj^j^     extracting  and  mining  the  ore  complained  of  by  plaintiffs  by  virtue  of 
►  their  proprietorship  of  a  vein  having  its  top  or  apex  outside  of  the 

—4  lines  of  that  claim,  and  extending  thence  on  a  departure  from  the 

iJ»^vv        perpendicular,  in  its  downward  course,  to  the  place  where  they  were 
I  working,  within  the  vertical  boundaries  of  the  Silver  Terra.     This 

^^n^-'^-^  (r»\  t<-t  AJ%    V^   CA-v  H--V.    c.  ;-w^  -J  Y<i2 


^  )R   VEINS   AND   THEIR   APEXES.  2/     *^    •«. 

answer  also  avers  that  the  plaintiffs  have  no  right,  title,  or  interest  in  .  ^r 
said  vein,  lode,  or  ledge  by  patent  from  the  United  States,  or  other-  riJi 
wise,  nor  any  right  to  the  ores  contained  therein ;  and  prays  that  it 
may  be  adjudged  that  the  defendants  are  the  proprietors  of  the  vein 
upon  which  they  were  working  at  the  commencement  of  the  action 
herein,  and  that  plaintiffs  have  no  estate,  right,  title,  or  interest  in 
or  to  the  same. 

The  issues  presented  by  these  pleadings  were  tried  by  the  court, 
without  a  jury.  Fifty-six  working  days  were  occupied  in  the  trial,  ,  -x 
during  the  course  of  which  35  witnesses  were  examined  for  the  plain-  •^^^  ' 
tiffs  and  60  for  the  defendants,  the  testimony  altogether  covering  Lj-K^ 
some  7,000  pages.  Once  during  the  progress  of  the  trial,  and  again  yC*"^ 
after  the  testimony  was  closed,  the  presiding  judge  visited  and  made  j,^^^,^.^ 
a  thorough  inspection  and  examination  of  the  premises  in  contro-  TV7^» 
versy,  in  company  with  a  representative  selected  by  each  party.  Sub-  W^** 
sequently  the  court  filed  its  findings  of  fact  and  conclusions  of  law,  A^^ 
adjudging  the  plaintiffs  entitled  to  the  relief  demanded,  and  a  final  ^*1m^ 
decree  was  entered  in  accordance  therewith.  A  motion  for  a  new 
trial  was  made  and  denied,  and  an  appeal  was  therefrom  taken  to  this  Vi^ 
court.  The  record  shows  lOO  assignments  of  error,  which  it  will  be  \An^ 
impossible  for  us  to  consider  in  detail.  We  shall  notice  only  some  of  -ftvi^-V 
the  more  important  involved  in  the  appeal.     *     *     *  .  '*■L^Su^ 

It  will  be  observed  that  there  is  no  controversy  respecting  the  sur-  ^ 
face  of  the  Silver  Terra  claim;  of  that  the  plaintiffs  are  in  unques-  ^<<\CJ2 
tioned  possession,  and  it  is  unquestionably  embraced  within  their  ^^jj  ^^  j 
patent.    The  ore  body  in  controversy  is  some  hundreds  of  feet  below 
the  surface,  and  has  been  reached  by  a  tunnel  upwards  of  600  feet   ^ 
long.    Nor  are  they  asserting  a  right  to  anything  beyond  or  outside   jf  "^^ 
of  that  segment  of  the  earth  which  would  be  included  within  planes  .Vl>f^ 
extended  vertically  downward  through  the  lines  of  their  claim.  They  ^«  ^^ 
are  merely  resisting  an  encroachment  upon  mineral  deposits  within       Y  ^ 
that  segment.    Let  us  consider,  therefore,  the  nature  and  incidents  of  ''       , 
the  title  acquired  by  possession,  location,  and  patent  of  mineral  lands.  ^^'^^ 

The  common-law  rule  is  familiar.    The  ownership  and  possession  t-^v-t 
of  the   soil   extended   to   the   center  of  the   earth,   and   usque   ad  /v#k^ 
coelum,   and   included   everything  upon   its   surface   and   within   its  j^^J^ 
bosom.   We  find  that  the  thing,  the  substance  of  which  the  United  ^^^  ■., 
States  statute  treats,  is  "lands  valuable  for  minerals,"  and  that  it  is  '   , 
for  the  disposition  of  these  "lands"  that  provision  is  made  in  chapter  )p  ^  ,  » 
6  of  the  Revised  Statutes.     It  is  the  "lands"  in  which  mineral  de-  [^^JJr^ 
posits  are  found  which  are  "open  to  purchase."    It  is  "land"  claimed  .        I 
and  located  for  valuable  mineral  deposits,  which  is  the  subject  ofUK/»<! 
application  for  patent,  and  where  patent  of  the  United  States  issues,  u^r^ 
it  is  for  the  "land,"  at  so  much  per  acre.    The  definition  of  "land"  (•     jj 
given  in  our  territorial  statute  is  concise :  "The  solid  material  of  the  ,        » 
earth,  whatever  may  be  the  ingredients  of  which  it  is  composed,  /' "*♦'/■' 
whether  soil,  rock,  or  other  substance."    In  the  absence  of  anything  JtW 


"i). 


f\  ■  f  t^ajfe  M   ww  ^  *-!-< 


Jfe^ 


C^  ^   28  PRELIMINARY   DEFINITIONS. 

in  the  statute  to  the  contrary,  we  think  it  might  well  be  concluded 
^^^     that  one  becoming  the  owner  or  possessor  of  any  of  these  lands 
^5^/    would  hold  them  with  and  subject  to  all  the  incidents  of  ownership 
'  and  possession  at  common  law.    It  should  be  borne  in  mind  that  be- 

^J"*-^  fore  the  enactment  of  any  statute  recognizing  and  regulating  his 
'  ,,_<  possessory  rights,  the  mining  locator,  as  between  himself  and  the 
'  ^  I  United  States,  was  technically  a  mere  trespasser  upon  the  public 
?  <*-l-^  domain ;  and  that  even  although  he  might  have  conformed  in  his 
/  location  to  the  rules  and  customs  adopted  in  the  mining  district  in 

"'*  '    which  his  claim  was  situated,  yet,  so  far  as  any  legal  right  existed 
>-4       to  hold  his  claim  against  a  new-comer,  that  right  rested  upon  pos- 
C         session  merely  ;  hence  the  statute.    Rev.  St.  U.  S.  §  910. 
If  ^  The  government,  however,  having,  in  pursuance  of  its  policy  of 

S"^^''    encouraging  the  discovery  and  development  of  its  mineral  wealth, 
C^tA*-^  long  tacitly  recognized  the  possession  of  the  miner,  has  now,  by 
/.Jl; 'statute,  not  only  given  an  express  license  to  those  establishing  their 
I  I  '      possession  in  the  prescribed  method,  and  provided  a  way  by  which 
?7  ^     the  locator  may  become  the  owner  in  fee  of  the  land  embraced  within 
'    the  lines  of  his  claim,  but  has  also  declared  that  such  locators  "shall 
0*1''  have  the  exclusive  possession  and  enjoyment  of  all  the  surface  in- 
cluded within  the  lines  of  their  location,  and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 

inside  of  such  surface  lines  extended  downward  vertically,  although 

— *"  such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular 
••BH^.  in  their  course  downward  as  to  extend  outside  of  the  vertical  side 
"^  lines  of  such  surface  locations."  [Rev.  St.  U.  S.  §  2322.]  This 
'^^  statute  undoubtedly  introduced  an  important  modification  of  the 
:^uA  common-law  rule.  It  gives  to  the  proprietor  of  a  vein  a  right  uri- 
»  known  to  the  common  law, — the  right  to  pursue  such  vein  beyond  his 

^       own  lines,  outside  of  that  particular  segment  of  the  earth  embraced 
A        within  the  lines  of  his  claim  extending  vertically  downward ;  and  it 
^        is  therefore,  to  that  extent,  an  enlargement  of  his  common-law  right. 
'^       But,  on  the  other  hand,  inasmuch  as  the  same  right  is  granted  to 
'T       every  locator  under  the  statute,  each  holds  his  possession  subject  to 
/'     the  same  right  in  others,  and  is  therefore  liable  to  have  his  land 
entered  by  an  adjoining  proprietor  pursuing  his  vein  in  its  course  be- 
yond his  own  side  lines ;  and  to  this  extent,  therefore,  his  commojv- 
law  possession  is  abridged. 

Two  points  cannot  fail  to  be  noticed  in  this  connection:  First, ,^ 

that  this  enlargement  of  the  common-law  possessory  right  is  incidep*^\ 

only  to  a  claim  located  in  the  manner  provided  by  law;  and,  second,  ^H- 

^  ^  that  the  exercise  of  such  right  operates  to  the  abridgement  of  the  ^  ^ : 

^■^'^' possession  of  every  tenement  penetrated  or  intersected  by  a  vein    " 

'  ^-^'T     having  its  top  or  apex  in  a  superior  tenement.  t^i 

Such  I  understand  to  be  the  effects  of  the  statute.    I  am  unable  to  '  ^ 

see  that  in  any  other  particular  essential  to  this  controversy  the      '^ 

ryM'y^J^r-^H-^   h^j£ibf.M^   i>ev^A^^6H<^>^tu^f^ 
^  ?     [l]\l 4<-^  <^*-^  B^  <>-^cMt«='^.^^^,  t^  '^"^ 


«B*s^ 


>^^f. 


LODES    OR   VEINS   AND   THEIR   APEXES.  29    JC^i:lC5 

rights  of  possessors  of  mineral  lands  differ  from  those  of  other   _  "»  j 
lands.    *    *    *  fl^ 

This  brings  us  to  the  consideration  of  the  main  controversy,  the  4r  6  ^ 
consideration  of  which  will  dispose  of  such  of  the  remaining  assign-  ;;~-*7"  "^ 
ments  of  error  as  we  think  essential.    We  have  already  stated  that fll.^'j; 
we  do  not  feel  called  upon  in  this  case  to  review  the  findings  of  fact/~-g4 
made  by  the  court  below.     We  shall  adopt  them  as  they  are.     Irf— -5.^    .. 
connection  with  these  findings,  and  the  conclusions  of  law  thereupon, 
the  court  also  delivered  a  carefully  prepared  opinion   in   writing,     /y^^ 
which  has  been  sent  up  with  the  record  to  this  court ;  and  inasmuch 
as  it  states  in  convenient  form  the  facts  and  circumstances  of  the  ^Vj]^ 
case,  and  the  conclusions  to  which  they  lead,  and  as  we  agree  with  C  i^^ 
those  conclusions,  we  shall  adopt  that  opinion  also,  or  so  much  of  it  J*  -^  ^ 
as  is  hereinafter  quoted,  as  the  basis  for  our  own  judgment.  ^  _■ 

After  disposing  of  some  preliminary  matters,  the  district  court     '  */>' 
proceeds  as  follows :  "Coming  now  to  the  main  questions  in  the  case,    ^  *  ^ 
which  involve  the  existence,  situation,  and  character  of  the  alleged       .  * 
vein  or  lode  of  mineral-bearing  rock,  the  location  of  defendants'     ^      ^ 
Sitting  Bull  claim  with  reference  thereto,  it  is  difficult  to  convey  a.  K  ^  i 
correct  comprehension  of  the  premises  without  the  aid  of  one  or    a^^^. 
more  diagrams,  but  I  will  attempt  a  description  which  may  suffice    j"        ' 
for  the  present  purpose.     Custer  hill,  upon  which  these  claims  are    i  ^^ 
located,  is  situated  in  the  village  of  Galena,  in  Bear  Butte  mining  dis-      * 
trict,  in  this  county.    The  village  lies  at  the  base  of  the  western  slope  ^        . 
of  the  hill,  which  presents  a  lateral  face  from  south  to  north  (taken     .    ^    .^ 
along  the  line  of  the  outcrop  hereafter  mentioned)  of  1,300  feet, —        " 
of  course  at  the  base  it  is  somewhat  wider.    At  its  northern  extrem-     '-*-'P 
ity  it  turns  to  the  east,  and  its  northern  slope  presents  a  lateral  face  vrrr  '>^ 
from  west  to  east  of  upwards  of  3,000  feet  at  least.    Along  its  base,  -j,^^^ 
and  following  it  in  this  turn,  in  the  direction  indicated,  is  a  small     j^   w 
stream  called  Bear  Butte  creek.     These  slopes  are  quite  steep,  and— ■^--— X, 
extend  from  base  to  summit  about  1,200  to  1,300  feet.     The  whole 
country  is  hilly  and  broken,  and  this  hill  is  only  one  of  a  series  of  ^  -  .. 
similar  elevations  with  which  it  is  more  or  less  directly  connected. 
Northwardly  across  Bear  Butte  valley,  or  gulch,  which  is  there  per-      .^^ 
haps  500  feet  or  more  in  width,  is  another  hill  known  in  this  case  ^^trT'f^ 
the  'Florence  Hill,'  whose  southern  slope  extends  laterally,  from  west*^   1^.^ 
^  "^    to  east,  nearly  parallel  with  Custer  hill.    Beginning,  now,  at  or  near  •  V* V / 
^^,    the  southern  extremity  of  the  western  slope  of  Custer  hill,  at  a  point 

perhaps  half  way  or  more  up  the  slope,  there  is  found  an  outcrop-  j 

ping  layer  or  stratum  of  a  reddish  quartzite  or  metamorphic  sand-  ^^ 
stone  several  feet  in  thickness,  (upwards  of  ten  feet  at  least,)  over-  'x  ]:>^  q 
laid  by  a  body  or  stratum  of  limestone  or  dolomitic  shale  of  a  thick-  V  '* 
ness  not  definitely  ascertained,  but  certainly  extending  several  feet  y^i' 
above  the  quartzite.  I  do  not  mean  to  be  understood  as  stating  that  j«^Lft„^^, 
this  is  the  beginning  point  of  this  quartzite  stratum ;  but  at  or  near  , 
this  place  the  hill  turns  to  the  west,  and  this  is  the  furthest  point 

ft^j^if    i^-«^"^X  C'K^^J.^^   ^-^'^  vfc^W-^  c>^'i.-.'r-  t-j...^   ^"v^,    \^^    ^ 


^^,  ivJU  ft**.  c^-'iJ^  -j  K>  *  tfi^,<fiM  v,)^  w- 

^^,  30  PRELIMINARY   DEFINITIONS, 

j'l^orrfiwardly  or  westwardly  to  which  attention  has  been  given  in 

0   the  case.     From  this  point  the  croppings  may  be  readily  traced,  in 

several  places  by  high  reef-like  ledges  jutting  out  boldly  from  the 

\,-      I      face  of  the  hill,  along  the  western  face  to  its  northern  extremity. 

;;   r^  The  general  bearing  of  this  line  of  croppings  in  the  direction  indi- 

'•  cated  is  given  by  Mr.  Dickerman,  one  of  the  defendants'  witnesses, 

as  N.  II  deg.  W.,  the  distance  as  1,243  feet,  and  the  angle  of  inclina- 
tion upwards,  from  south  to  north,  as  3  deg.  26  min.  Mr.  White, 
a  witness  for  plaintiffs,  gives  the  distance  as  1,300  feet,  and  the  angle 
of  inclination  as  somewhat  less  than  that  stated.  At  the  northern 
extremity  of  the  hill  this  line  of  outcrop  of  quartzite,  with  its  over- 
lying limestone  or  dolomite,  turns  and  extends  along  the  northern 
slope  with  a  downward  inclination,  thus  gradually  nearing  the  base 
of  the  hill,  until,  at  a  distance  of  something  over  2,500  feet,  (not 
established  by  the  testimony,)  it  disappears  beneath  the  bed  of  the 

^t-  creek.  r""^ 

"There  is  much  conflict  of  testimony  as  to  whether  this  last  line 
of  outcrop  was  originally  traceable  by  a  natural  exposure  along  the 
face  of  the  hill,  or  whether  the  discoveries  on  this  side  were  made 
by  following  up  the  quartzite  float,  or  pieces  of  detached  rock,  which 
had  rolled  down  the  hill-side,  and  the  edge  of  the  stratum  afterwards 
traced  by  means  of  the  numerous  workings  which  have  since  been 
made  there.  There  is  considerable  natural  exposure  towards  the 
eastern  end  of  the  line,  but  the  hill-side  there  is  very  precipitous 
and  inaccessible.  Mr.  Frank  Davey  testifies  to  a  natural  exposure  of 
quartzite  all  along  the  face  of  the  hill  on  the  line  which  I  have  called 
the  line  of  outcrop ;  but  I  do  not  remember  any  other  witness  who 
testifies  positively  to  this,  while  numerous  witnesses  testify  that, 
although  they  looked  for  such  exposure,  they  could  not  find  any,  at 
least  in  the  Sitting  Bull  location ;  and  I  think  it  clearly  appears  from 
the  testimony  of  Donegan,  the  original  locator  of  the  Sitting  Bull, 
that  he  was  led  to  his  discovery  entirely  by  float,  and  found  no  out- 

i-*-*^'       crop  at  all,  except  where  he  and  his  co-locator  exposed  it  by  uncov- 
^,    ^ring  the  ledge.     He  says  expressly  that  they  found  it  by  finding 
^^/^  float  down  the  hill,  and  followed  it  up  until  they  couldn't  find  the 
float, — there  they  concluded  must  be  the  apex  of  a  vein.     It  should 
be  mentioned,  however,  that  considerable  work  was  done  upon  the 
V  ledge,  by  which  it  was  exposed  in  many  places,  and  a  road  was  cut 
_^.,>'^long  the  hill-side, — so  that  what  Mr.  Davey  took  for  natural  ex- 
posures may  have  been  portions  of  the  ledge  uncovered  by  work, 

,  »  There  is  no  doubt,  however,  that  whether  it  came  within  the  strict 

definition   of   an    outcrop   or   not, — given   by   one    learned   author 

^    fi^      (Geike)  as  'the  edges  of  strata  which  appear  at  the  surface  of  the 

■  1,  U-A  ground,'  and  by  another  (Van  Cotta)  as  'that  portion  of  a  vein  ap- 
pearing  at   the   surface,' — the   northerly    edc!;e   of   this    stratum    of 
^  »        quartzite,  with  its  overlaying  stratum  of  limestone,  extends  in  the 

*  manner  already  indicated,  on  a  line  at  or  near  the  surface,  all  along 

'^^o^f  hcAJj^  ^(pcA^   wU^f  .s-^c^'^i^ 


LODES    OR   VEINS   AND   THEIR   APEXES.  31     ^rtuJ^' 

the  northerly  face  of  the  hill,  and  would  seem  to  come  within  the  '"  ^  "* 
definition  given  by  Dr.  Raymond  in  his  glossary :  'The  portion  of  a  K%-»X-f 
vein  or  stratum  emerging  at  the  surface,  or  appearing  immediately  x^  ^ 
under  the  soil  and  surface  debris/  •     •      / 

"The  general  course  and  direction  of  this  line  of  outcrop  are  indi-    ^/-uv4L 
cated  by  Prof.  Dickerman,  who  testifies  that  from  the  point  on  the    ^^^^jrtj^^ 
outcrop  already  referred  to,  on  the  northern  extremity  of  the  hill,      .    ^ 
at  the  turn,  to  a  point  thence  distant  1,950  feet,  (about  100  feet  west   tl^  '-^  ' 
of  the  east  end  of  the  Sitting  Bull  location,  hereafter  described,)   ^r4jfc 
the  bearing  is  N.  70  deg.  30  min.  E.,  and  the  angle  of  declination  9  .     ♦ »     , 
deg.   Along  the  whole  line  of  this  outcrop,  as  thus  described,  loca-  pvn**<i 
tions  of  mining  claims  appear  to  have  been  made,  which  I  note  jv^T"* 
here,  as  they  have  been  referred  to  in  the  testimony,  mainly  for  con-    ,aJJ  ^   ^ 
venience  of  description  and  reference.   First  on  the  south  is  the  War  "i^ 
Eagle  location ;  north  of  that  the  Savage ;  then,  on  the  same  face  of    y^^^ 
the  hill,  the  Custer.    I  believe  another  location  called  the  'Highland         .. 
-^  Chief  embraces  some  part  of  this  line,  but  have  no  reference  to  it.   ^-"^ 
/T    On  the  northern  slope  are,  first  the  Neptune,  then  the  Sitting  Bull,   <.^4U^ 
and  then  the  McClellan,— all  located  in  an  easterly  and  westerly  di-   w.  .  o^ 
^^  'rection,  end  to  end,  along  this  line  of  outcrop  already  described,  ex-    '^^X  » 
»*»<.  tending  across  the  northerly  face  of  the  hill.   More  specifically,  with   u-*m>^ 
^^^  reference  to  the  Sitting  Bull,  that  location  is  situated  about  midway —  ^^^^^^^  ^^ 
L,^east  and  west— of  the  northerly  face  of  the  hill,  and  extends  from       ^i  ^ 
'       the  point  of  discovery  about  690  feet  in  a  direction  S.  74  30  W.,  (re-  «v    ^•^'^ 
*^    versely  N.  74  30  E.,)  and  from  the  same  point  about  the  same  dis-  t^v  H*kr 
?S  tance  N.  89  30  E.    The  end  lines  are  parallel,  having  a  bearing  of  ^.^^^^^^ 
'ipS.  35  deg.  E.   The  claim  is  thus  about  1,380  feet  long,  and  is  about       ,^^^ 
vA  300  feet  in  width.    Throughout  this  length  the  line  of  outcrop  de-   |  ' 
*4*  scribed  is  wholly  within  the  side  lines  of  the  location,  and  passes  ^^^^  i^ 
(^  through  the  end" lines  very  nearly  at  their  middle  points.   Adjoining  ' 

,.  .  the  Sitting  Bull  on  the  south,  and  passing  up  the  hill  in  the  order  f  «^^a.-w^ 
^  named,  are  the  Tiger  Tail,  Surplus,  Fraction,  and  Silver  Terra  loca-  t^  to^^ 
'**^^  tions,  all  laid  substantially  parallel  with  the  Sitting  Bull.  The  Tiger  -^^ 
'^)     Tail  is  owned  or  claimed  bv  the  defendants  ;  the  others  by  the  plain-  **  . 

^tU»  tiffs,  or  some  of  them.    Adjoining  the  Tiger  Tail  and  Surplus  on  i->;;i(>J^ 
KJ),  the  west,  and  the  Sitting  Bull  on  the  north,  is  another  claim  of  the  ^^^^  j^ 
^    plaintiffs'  called  the  'Richmond.'    For  the  Silver  Terra  and  Sitting     y 
Bull  claims  the  plaintiffs  and  defendants  respectively  hold  patents  of  /^.v--^  ? 
the  United  States.    As  already  stated,  the  ledge  within  the  Sitthig  ,^.  |^ 
Bull  location  has  been  exposed  by  numerous  excavations,  and  drifts  J 
have  been  run  in  various  directions  in  the  quartzite,   from  all  of  C-r./w-^ 
which  more  or  less  valuable  silver  ore  has,  from  time  to  time,  been 
extracted.    The  main  working  tunnel  starts  at  a  point  near  the  dis-  ^^,.^.-, 
covery  tunnel,  and  extends  in  a  generally  south-east  direction  about        *^ 
700  feet  across  or  through  the  intervening  claims,  and  a  short  dis-**M  ^    - 
tance  into  the  ground  embraced  within  the  vertically  extended  lines  ^^vJi  J>*4 
of  the  Silver  Terra.    Branching  off  from  this  main  tunnel,  and,  as,j.^j;^^-  I 

•Kjj^^    K/^   ^t*^«     VVliM*<5  |<^7n>-^V  ti-^i«jXx§f%X   4^ 


Xi#U^«t'''»n 


32 


PRELIMINARY   DEFINITIONS. 


Mr.  Frank  Davey  says,  in  every  conceivable  direction,  are  numerous 
extensive  drifts.  At  the  end  or  face  of  the  main  tunnel  a  large  cham- 
ber has  been  excavated,  disclosing  a  body  of  valuable  silver  ore, 
which  defendants  were  engaged  in  removing  when  stopped  by  the 
injunction  issued  in  this  action. 

"All  these  workings  are  in  the  quartzite,  disclosing  throughout 

pretty  much  all  their  extent  the  overlying  stratum  of  limestone, 

which  forms  the  roof  of  the  workings,  and  upon  the  contact  of  which 

with  the  quartzite  the  drifts  have  mainly  been  run,  although  in  some 

^  fL€i>e^'  places  this  roof  has  been  broken  into,  and  in  other  places,  where  the 

cleavage  was  imperfect,  the  quartzite  has  been  left  in  place.    This 

roof  or  wall  is  quite  smooth  and  regular, — remarkably  so,  is  the 

,  i>^     testimony  of  several  of  the  more  experienced  witnesses.    The  floor 

'*  of  the  workings  is  also  in  the  quartzite,  which  is  thus  shown  to  have 

»>  *U,*ift    a  thickness  of  at  least  seven  feet,  and  other  testimony  established  a 

^  VC'^   ^thickness  of  at  least  ten  feet.   Beyond  this  its  extent  is  uncertain. 

"The  defendants  contend  that  by  their  excavations,  one  on  the 
\^-^^  ^  edge  of  the  ledge  outside  and  two  within  the  workings,  a  chloritic 
«^  ^*-*^  quartzose  shale  has  been  discovered  a  few  feet  below  the  floor,  es- 
I  "  C  6i  sentially  diiTering  from  the  quartzite,  and  forming  a  distinct  foot- 
,  ,0-1^  wall.  The  plaintififs  deny  any  essential  difference  in  the  rock  so  dis- 
I'  \jK>u^ ,  closed,  and  claim  that  other  explorations,  which  are  testified  to,  es- 
^i^L^t'  tablish  the  continuity  of  the  quartzite  for  an  undetermined  extent 
»  jr  downward,  and  contend  that  at  all  events  the  limited  excavations 
*^P^  '  made  by  the  defendants  are  not  sufficient  to  establish  the  existence 
^r  ^"  of  a  foot- wall,  as  claimed.  The  evidence  is  practically  undisputed 
J^jjJ^  that  throughout  its  whole  extent,  so  far  as  disclosed  by  the  workings 
^     ^^  of  the  defendants,  the  quartzite  is  mineralized  or  metalized  with  iron 

^^     and  silver  in  various  forms  of  deposit ;  the  iron  being  mostly  in  the 
form  of  an  oxide,  giving  a  reddish  tinge  to  the  rock,  and  the  silver 
<^  ^■^y'tv^  existing  in  the  form  of  native  silver,  sulphurets,  chlorides,  bromides, 
t     j^L-.*W-ruby  silver,  and  carbonates.   These  silver  ores  are  found  impregnat- 
ing the  quartzite  more  or  less  throughout,  it  being  in  some  places 
y*  *,      '    considerably  decomposed,  and  in  others  retaining  its  massive  ap- 
jlf    *-*»\      pearance,  with  little  or  no  external  indication  of  richness ;  but  Mr. 
j^_  Davey  testifies  that  among  some  thousands  of  assays  of  this  quartz- 

A^jf  j^  ite,  taken  from  time  to  time  from  all  parts  of  the  workings,  he  has 
'  O"^^:  never  found  any  which  did  not  show  an  appreciable  quantity  of 
L^^  ,  silver.    Besides  the  forms  of  deposit  already  mentioned,  bodies  of 

galena  bearing  silver  are  also  found  distributed  in  bunches,  pockets, 
and  bands  or  sheets  of  varying  extent  throughout  the  workings,  but 
^^1^,,,^^  not  in  any  continuous  body.    Generally  these  ore  deposits  are  found 

to  be  richest  along  the  contact  of  the  roof,  extending  three  or  four 
feet  downward.    Sometimes  they  are  found  lower  down.    Occasion- 
Qu>,.<^     ally  the  galena  would  shoot  up  in  the  limestone,  then  again  down  to 

,^he  floor. 
\.^^{i0^^UaX  "Prof.  Dickerman  is  of  the  opinion  that  this  galena  was  brought 


6l^t 


VAv.t 


"^  LODES    OR   VEINS   AND   THEIR   APEXES.  33    tV^,..**-^ 

up  and  deposited  in  a  molten  condition,  and  that  all  the  other  forms    .  ^ 
of  deposit  have  proceeded  from  it  by  decomposition  and  impregna-   p  HUX- 
tion.   Air.  Riotte,  another  expert  witness  for  defendants,  and  a  gen-bJt*^   C 
tleman  of  large  experience  and  scientific  attainments,  is  of  the  opin-  fiw>^  * 
ion  that  at  or  about  the  time  of  the  first  metamorphosis  of  sandstone  ^^^ji,^. 
into  quartzite  the  galena  was  brought  up  in  solution  by  means  o^  ^  *•*  /^ 
hot  spring,  and  that  long  subsequently  the  second  metamorphosis  of  ^  «*-^ 
the  quartzite  took  place  into  its  present  condition,  which  he  says  is /fjBt-^  4t 
strictly  quartz,  and  then  the  other  silver  ores  were  brought  up  and  ^.     y^. 
deposited  by  similar  means.    Between  these  two  theories  I  do  not       *'  jr^ 
feel  called  upon  to  decide.    I  am  satisfied  that  whatever  the  cause,  ^    '^ 
the  result  was  a  continuous  impregnation  and  mineralization  of  the  U^/ti.-M. 
quartzite  with  silver  throughout,  so  far  as  disclosed  by  the  Sitting  Jlnf   *fi 
Bull  workings,  and  extending  to  the  ground  in  controversy.  i,./ 

"Following  the  main  working  tunnel   from   the  point  where  it  fWi^.  \ 
passes  through  the  south  side  line  of  the  Sitting  Bull,  through  the  in-  r       ^>-|^ 
tervening  ground,  and  into  the  ground  in  controversy,  the  floor  of  the      « 
tunnel  and  the  roof  in  the  line  of  direction  of  the  tunnel  have  a  gen-  «fl>£#  **s-| 
eral  downward  inclination  of  about  4  deg., — greater  where  it  trends  (My^ 
to  the  east,  less  where  the  trend  is  towards  the  south.    Upon  the-.  ^fjZ 
Richmond  location,  before  mentioned,  plaintiffs  have  sunk  a  shaft,   |  ^ ^ 
from  which  at  a  depth  of  100  feet  a  drift  or  tunnel  has  been  run  by  UjS^    * 
them,  extending  in  a  south-easterly  direction  to  where  it  reaches  the  c^^^, 
vertically  extended  north  line  of  the  Surplus;  then  turning  some-  -^    "^ 
what  more  to  the  east,  until  it  passes  the  north  line  of  the  Silver  '  ^^  *^ 
Terra ;  and  then  again  turning  in  a  direction  very  little  south  of  east,  ^^     ,^ 
until  it  passes  some  distance  beyond  the  point  where  it  would  be   A^^^^*A 
intersected  by  a  continuation  of  the  defendants'  main  drift, — head-  *^^^f^ 
ing  it  off,  so  to  speak, — and  separated  from  it  at  that  point  by  not  %/  >  ^}j^ 
more   than    four   or   five    feet   of   intervening   rock.    This   tunnel,  ^ 
throughout  its  whole  extent  of  some  800  feet,  was  run  in  the  quartz- 
ite, disclosing  and  following  the  overhanging  roof  of  limestone,  and^^ 
encountering  several  bodies  of  galena  and  other  pay  ore ;  but  al- 
though very  little  testimony  was  offered  on  this  point,  I  understand 
the  plaintiff's  to  say  that  except  where  these  ores  were  encountered 
they  did  not  consider  the  quartzite  rich  enough  to  pay.    Incidental  "^  "^  ^^ 
mention  was  also  made  in  the  evidence  of  tunnels  run  in  for  short  y|^**^j 
distances  on  the  quartzite  from  the  west  on  the  War  Eagle,  Savage,  C»,j«Mtain 
and  Custer  locations.    I  may  add  here  that,  except  at  the  entrance  ^^,„^^   . 
to  the  drifts,  the  workings  are  not  timbered, — the  rock  everywhere     . 
being  found  firm  and  massive.    Of  course,  pillars  are  left  at  proper  ^  • 
intervals.  YUri-^ ' 

"The  facts  thus  far  given  are,  I  believe,  mainly  uncontradicted,  ^lut  T^ 
except  where  otherwise  stated.    I  come  now  to  a  consideration  of  ^-j,.,^,^ 
those  about  which  there  has  been  more  or  less  conflict  of  testimony.  ,^  ^     », 
Foremost  and  most  important  of  these  is  the  question  as  to  the  di-  v, 

rection  of  the  dip  or  downward  course  of  this  stratum  of  quartzite,    ^*"''**^'^ 
3-MiNiNG  Law     ''S^ryk^   w^V  Ct^u-vwfSU  ','    >^  44va^  T*w^»  "^ 

UsJ^   owV  ct^a^  a-^^-^  ekB3d:td  +^  ^^"^^ 


''■'^^»       34  PRELIMINARY   DEFINITIOXS. 

-  -fl^     with  its  overlying  limestone.     *     *     *     I  think  it  will  be  sufficiently 

correct  for  the  purposes  of  this  case,  and,  indeed,  I  do  not  see  how 

'*"^'.     any  essentially  different  result  can  be  reached  from  all  the  testimony, 

•  *^rk  if  we  determine  that  the  dip  of  this  stratum  of  quartzite,  with  Its 
Ihee4  C  overlying  limestone,  is  east.   The  general  angle  of  declination  of  this 

stratum,  or  its  departure  from  the  horizontal,  I  find  to  be  from  7^ 
^  *^  to  8  deg.  If  it  were  taken  from  the  westerly  line  of  outcrop,  a  soine- 
,y^%^  what  greater  angle  would  be  given ;  but  the  evidence  seems  to  show 
„fo  that  by  some  means,  probably  by  the  occurrence  of  a  porphyry  dike 
^^  which  is  found  there,  the  north-east  corner  of  the  hill  has  been 
V7  h^h  slightly  tilted  up,  causing  a  local  variation. 

r  rl/       "There  was  considerable  discussion  and  variety  of  opinion  as  to 

'^    >ti  whether  the  stratum  of  quartzite  outcropping  along  the  southerly  face 

1'  '  of  the  Florence  hill  was  to  be  regarded  as  having  originally  formed  a 
V  >^v>. "  continuation  of  that  in  the  Custer  hill,  the  plaintiffs  contending  that  it 
f'-Jht        corresponds  in  the  conditions  of  its  occurrence  and  general  charac- 

H  »»  teristics,  as  well  as  in  the  inclination  downward  towards  the  creek, 
{  ^^^'with  the  stratum  in  controversy,  while  this  is  denied  by  some  of  the 
f^  \m      defendants'  witnesses,  especially  by  Mr.  Riotte.    From  all  the  testi- 

Vi  J  J  """O^y  °"  this  point,  I  think  it  probable  that  the  sedimentary  rocks 
^  fhm^  composing  both  these  hills  were  originally  deposited  in  similar  and 
'  continuous   formation;   that   by   some   dynamic  process   these   hills 

f^  y^   were  subsequently  elevated  to  their  present  positions,  and  the  char- 

^i^tfivv  acteristic  conditions  of  their  respective  rocks  somewhat  dift'erenti- 

Xated ;  that  by  the  same  process  of  upheaval  the  waters  of  Bear  Butte 
creek  were  directed  into  a  channel  having  the  general  direction  of 
•"  its  present  course ;  and  that  by  the  erosive  action  of  these  waters,  and 
(/XJff  the  gentler  but  equally  efficient  forces  of  rain  and  snow  and  frost, 
"U  the  edges  of  these  strata  have  been  exposed,  to  be  again  covered  by 

^  ^^       the  gradual  accumulation  of  soil  upon  the  hill-sides.    But  of  these 
ancient  and  gigantic  processes  of  nature  it  becomes  us  to  speak  with 
great  diffidence,  and  I  do  not  deem  this  point  essential  to  a  determi- 
fg%j^.X^  nation  of  the  case.    It  is  also  claimed  by  defendants  that  along  the 
northerly  face  of  the  hill,  and  for  a  width,  say,  of  50  to  75  feet, — 
t  <J^Hs    perhaps  a  little  more  in  some  places, — the  edge  of  the  strata  have 
A  /    been  broken  up  and  disintegrated  by  the  action  of  the  elements,  and 
V'*^.        in  this  condition  have  yielded  to  the  downward  'slide'  of  the  surface, 
'rtand  have  been  somewhat  bent  over,  so  as  to  impair  the  value  of  ob- 
,,  servations  taken  within  that  region.    It  is  true  that  the  testimony 

*  **^'''^  shows  the  limestone  to  be  much  broken  up  towards  the  edge,  as  it 
„^^  ,         naturally  would  be ;  but  whether  it  is  actually  bent  over,  or  to  what 

J,  extent,  docs  not  clearly  appear,  nor  do  I  think  it  clearly  appears  that 
V^vr\^  the  quartzite  has  been  dislocated  by  this  process.  At  all  events,  there 
^  ^  are  no  data  from  which  any  certain  result  can  be  ascertained  as  due 
t  to  this  circumstance,  and  I  cannot  regard  it  as  essentially  varying 
^yJSifU)  the  conclusions  reached. 
.^.i^V-   ,     "I  pass  now  to  a  consideration  of  the  law  governing  this  case,  and 


c^ 


LODES   OR   VEINS    AND   THEIR   APEXES.  35 

the  legal  inferences  to  be  derived  from  its  application  to  the  facts 
thus  ascertained.  Recurring  to  the  proposition  laid  down  in  the 
earlier  history  of  the  case,  that  by  their  possession,  and  a  fortiori 
by  their  entry  and  patent,  of  the  Silver  Terra  claim,  the  plaintiffs 
show  themselves  entitled  to  everything  within  the  vertically  extended 
side  lines  of  that  claim,  including  even  a  body  of  ore  forming  part 
of  a  vein,  lode,  or  ledge,  having  its  origin  or  beginning  outside  of 
those  lines,  until  some  one  shall  appear  to  claim  it  with  a  better 
title,  as  the  proprietor  of  such  vein,  (it  being  conceded,  as  I  under- 
stand it,  that  the  Silver  Terra  location  was  not  based  upon  a  dis- 
covery of  this  particular  ore  body,  or  of  any  vein,  lode,  or  ledge  of 
which  it  formed  a  part,)  and  recalling  also  the  conditions  under 
which  alone  such  better  title  can  be  made  to  appear,  we  inquire : 

"First.  Is  the  ore  body  in  controversy  part  of  a  vein,  lode,  or  ledge 
of  quartz  or  other  rock  in  place,  bearing  silver,  within  the  meaning 
of  the  statute?  Various  definitions  have  been  given  of  'veins'  and 
'lodes'.  I  shall  seek  no  new  one,  but  content  myself  with  stating  a 
few  which  have  received  high  judicial  sanction.  Justice  Hallett's 
definition  is :  'A  body  of  mineral,  or  mineral-bearing  rock,  within 
defined  boundaries,  in  the  mass  of  the  mountain.'  Judge  Goddard 
gives  this  definition :  'Any  mineralized  belt  or  zone  of  rock,  lying 
within  boundaries  clearly  distinguishing  it  from  the  neighboring 
rock,  coming  from  the  same  source,  impressed  with  the  same  forms, 
and  appearing  to  be  created  by  the  same  process.'  This  definition  was 
originally  given  by  Justice .  Justice  Field  gives  the  same  defini- 
tion, and  also  the  following :  'A  continuous  bed  of  mineralized  rock, 
lying  within  any  other  well-defined  boundaries  on  the  earth's  surface, 
and  under  it.'  And  Justice  Miller  quotes  approvingly  all  the  defini- 
tions above  given.  In  the  great  case  of  the  Richmond  Co.  v.  Eureka 
Co.,  103  U.  S.  839,  tried  before  Justices  Field,  Sawyer,  and  Hill- 
yer,  the  evidence  showed  a  zone  or  belt  of  limestone  between  walls 
of  quartzite  and  shale.  This  limestone  was  much  broken  up,  disinte- 
grated, and  fissured,  and  throughout  these  fissures  ore  was  deposited 
in  irregular  bunches,  patches,  caverns,  and  spaces  of  every  variety 
of  form  and  size,  irregularly  disseminated  through  the  mass,  with 
a  succession  of  great  cavities  lying  irregularly  across  the  limestone, 
the  whole  mass  being  irregularly  impregnated  with  the  ore.  This 
was  held  to  constitute  one  lode,  within  the  meaning  of  the  law.  Dr. 
Raymond  has  somewhere  defined  a  'lode'  as  that  which  the  miner 
can  follow,  expecting  to  find  ore. 

"Two  of  the  defendants'  witnesses,  IMessrs.  Dickerman  and  Riotte, 
gave  it  as  their  opinion  that  the  deposits  of  galena  in  this  mine  con- 
stituted a  vein,  within  and  separate  from  the  lode,  and  having  a 
downward  direction  nearly  parallel  with  the  end  lines  of  defendants' 
claim ;  and  it  was  contended  that  this  constituted  a  vein  which  would 
meet  the  conditions  proposed,  and  give  the  defendants  the  right  to 
follow  it  into  plaintiffs'  ground.    But  I  do  not  find  any  evidence 


^6  PRELIMINARY   DEFINITIONS, 

which  at  all  satisfies  me  either  as  to  the  continuity  of  this  galena 
deposit,  apart  from  the  lode,  or  as  to  its  direction.  Nor  do  I  per- 
ceive how,  consistently  with  the  other  evidence,  it  can  be  claimed 
that  this  could  be  followed  and  worked  separately  from  the  lode. 
The  only  evidence  of  direction  that  I  recall  is  found  in  the  testimony 
of  Mr.  Riotte,  who  says  that  he  found  strice  or  furrows  in  the  con- 
tact; that  strice  invariably  indicate  the  direction  of  ore  chutes  in  a 
vein ;  and  that  in  any  given  vein  the  ore  chutes  are  always  parallel ; 
and  that  in  one  place  in  this  vein  where  he  found  strioe  he  took  their 
direction  with  a  compass,  and  found  it  to  be  a  little  north  of  south- 
east. As  to  the  existence  of  strice,  and  their  indications,  I  think  he 
is  corroborated  to  a  limited  extent  by  Prof.  Dickerman.  But  besides 
that,  I  am  not  satisfied  that  Mr.  Riotte's  theory  is  one  generally  ac- 
cepted by  scientists.  I  am  not  willing  to  place  a  finding  upon  so 
slender  a' basis  of  facts.  No  other  witness  that  I  remember  advanced 
this  view,  indeed,  Mr.  Riotte  himself,  after  giving  the  same  definition 
of  a  lode  as  that  of  Dr.  Raymond,  just  quoted,  and  in  answer  to  a 
question  by  the  court  as  to  whether  these  chutes  of  ore  or  the  body 
of  the  quartzite  would  be  the  lode  which  would  lead  the  miner  on, 
answered :   'The  body  of  quartzite,  decidedly.' 

"A  somewhat  similar  theory  was  advanced  by  the  witnesses  of  the 
defendant  in  the  Eureka-Richmond  Case,  though  with  a  different 
purpose,  respecting  deposits  attempted  to  be  designated  as  separate 
veins.  But,  in  the  language  of  the  court  in  that  case,  'they  are  but 
parts  of  one  greater  deposit,  which  permeates  in  a  greater  or  less 
degree,  with  occasional  intervening  spaces  of  barren  rock,  the  whole 
mass  of  limestone.'  Substituting  'quartzite'  for  'limestone,'  these 
words  are  apt  and  pertinent  to  the  present  case.  And  while  I  am 
not  entirely  satisfied  of  the  existence  of  the  particular  foot-wall 
claimed  by  the  defendants,  yet  I  consider  that  a  stratum  of  massive 
rock  of  this  character,  overlaid  by  a  solid  mass  of  limestone,  and  min- 
eralized as  this  is,  comes  clearly  within  the  definitions  given;  and  I 
must  therefore  find  this  body  of  quartzite  to  be  a  vein,  lode,  or  ledge 
of  rock  in  place,  bearing  silver,  within  the  meaning  of  the  statute. 

"Secondly.  Is  the  top  or  apex  of  this  vein  or  lode  within  the  lines 
of  the  Sitting  Bull  location  ?  The  definition  of  the  top  or  apex  of  a 
vein  usually  given  is  'the  end  or  edge  of  a  vein  nearest  the  surface ;' 
and  to  this  definition  the  defendants  insist  we  must  adhere  with  ab- 
solute literal  and  exclusive  strictness,  so  that  wherever,  under  any 
circumstances,  an  edge  of  a  vein  can  be  found  at  any  surface,  regard- 
less of  all  other  circumstances,  that  is  to  be  considered  as  the  top 
or  apex  of  the  vein.  The  extent  to  which  this  view  was  carried  by 
the  defendants,  and,  I  must  confess,  its  logical  results,  were  exhibited 
by  Prof.  Dickerman,  their  engineer,  who,  replying  to  an  inquiry  as 
to  what  would  be  the  apex  of  a  vein  cropping  out  at  an  angle  of 
I  deg.  from  the  vertical,  on  a  perpendicular  hill-side,  and  cropping 
out  also  at  a  right  angle  with  that  along  the  level  summit  of  the  hill. 


LODES    OR   VEINS   AND   THEIR   APEXES.  37 

stated  that  in  his  opinion  the  whole  line  of  that  outcrop,  from  the 
bottom  clear  over  the  hill  as  far  as  it  extended,  would  be  the  apex 
of  the  vein.  Some  other  witnesses  had  a  similar  opinion.  The  defini- 
tion given  is  no  doubt  correct  under  most  circumstances,  but,  like 
many  other  definitions,  is  found  to  lack  fullness  and  accuracy  in  spe- 
cial cases ;  and  I  do  not  think  important  questions  of  law  are  to  be 
determined  by  a  slavish  adherence  to  this  letter  of  an  arbitrary  defi- 
nition. It  is  indeed  difficult  to  see  how  any  serious  question  could 
have  arisen  as  to  the  practical  meaning  of  the  terms  'top'  or  'apex,' 
but  it  seems  in  fact  to  have  become  somewhat  clouded.  I  apprehend 
if  any  intelligent  person  were  asked  to  point  out  the  top  or  apex  of 
a  house,  a  spire,  a  tree,  or  hill,  he  would  have  no  difficulty  in  doing 
so,  and  I  do  not  see  why  the  same  common  sense  should  not  be  ap- 
plied to  a  vein  or  lode.  Statutory  words  are  to  receive  their_  ordinary 
interpretation,  except  where  shown  to  have  a  special  meaning ;  and, 
as  I  think  the  testimony  shows  that  these  terms  were  unkno\vn  to 
miners  in  their  application  to  veins  before  the  statute,  the  ordinary 
rule  would  seem  to  apply  to  them. 

''Justice  GoDDARD,  a  jurist  of  experience  in  mining  law,  in  his 
charge  to  the  jury  in  the  case  of  Iron  Silver  v.  Louisville,  defines 
'top'  or  'apex'  as  the  highest  or  terminal  point  of  a  vein  'where  it 
approaches  nearest  the  surface  of  the  earth,  and  where  it  is  broken 
on  its  edge,  so  as  to  appear  to  be  the  beginning  or  end  of  the  vein.' 
Chief  Justice  Beatty,  of  Nevada,  who  is  mentioned  in  the  report 
of  the  public  lands  commission  of  1879-80  as  'one  of  the  ablest 
jurists  who  has  administered  the  mining  law,'  in  his  letter  to  that 
commission  says,  after  defining  dip  and  course  of  strike:  'The  top 
or  apex  of  any  part  of  a  vein  is  found  by  following  the  line  of  its 
dip  up  to  the  highest  point  at  which  vein  matter  exists  in  the  fissure. 
According  to  this  definition,  the  top  or  apex  of  a  vein  is  the  highest 
part  of  a  vein  along  its  entire  course.  If  the  vein  is  supposed  to  be 
divided  into  sections  by  vertical  planes,  at  right  angles  to  the  strike, 
the  top  or  apex  of  each  section  is  the  highest  part  of  the  vein  be- 
tween the  planes  that  bound  that  section ;  but  if  the  dividing  planes 
are  not  vertical,  or  not  at  right  angles  to  a  vein  which  departs  at  all 
from  a  perpendicular  in  its  downward  course,  then  the  highest  part 
of  the  vein  between  such  planes  will  not  be  the  top  or  apex  of  the 
section  which  they  include.'  Report  Pub.  Lands  Com.  399. 

"I  am  aware  that  in  several  adjudged  cases,  'top'  or  'apex'  and 
'outcrop'  have  been  treated  as  synonymous,  but  never,  so  far  as  I  am 
aware,  with  reference  to  a  case  presenting  the  same  features  as  the 
present.  The  word  'apex'  ordinarily  designates  a  point,  and  so  con- 
sidered the  apex  of  a  vein  is  the  summit ;  the  highest  point  in  the 
vein  in  the  ascent  along  the  line  of  its  dip  or  downward  course,  and 
beyond  which  the  vein  extends  no  further,  so  that  it  is  the  end,  or, 
reversely,  the  beginning,  of  the  vein.  The  word  'top,'  while  includ- 
ing 'apex,'  may  also  include  a  succession  of  points, — that  is,  a  line, — 


38  PRELIMINARY   DEFINITIONS. 

SO  that  by  the  'top'  of  a  vein  would  be  meant  the  Hne  connecting  a 
succession  of  such  highest  points  or  apices,  thus  forming  an  edge.  _ 

"I  have  spoken  of  the  'dip'  or  'downward  course'  of  the  vein, 
treating  these  words  as  synonymous,  and  so  I  think  they  must  be 
regarded.  'Dip'  and  'depth'  are  of  the  same  origin, — 'dip'  is  the  di- 
rection or  inchnation  towards  the  'depth,' — and  it  is  'throughout 
their  depth'  that  veins  may  be  followed,  and  that  is  surely  their 
downward  course.  Mr.  Riotte  gives  us  a  different  definition.  He 
says:  'Starting  any  line  upon  the  apex  of  the  vein,  and  running 
down  upon  the  vein  parallel  to  the  end  lines,  (of  the  location,)  the 
inclination  that  line  has  is  the  downward  course  of  the  vein.'  And 
when  asked :  'So  that  the  direction  of  the  end  lines  of  a  mining  lo- 
cation absolutely  fixes  the  direction  of  the  downward  course  of  the 
vein?'  he  replies:  'As  far  as  it  interests  the  man  who  has  located 
that  claim.'  Elsewhere  he  says  that,  in  his  view  of  the  law,  end  lines 
of  locations  are,  as  he  expresses  it,  'swingable ;'  so  that  when  the  lo- 
cator determines  the  direction  of  his  ore  chutes  he  may  swing  his 
end  lines  parallel  to  them,  so  as  to  take  them  in  throughout  their 
depth.  A  very  little  reflection  will  show  that,  if  this  be  the  law,  a  lo- 
cator, instead  of  being  limited  to  1,500  feet  along  the  vein,  could 
readily  place  his  end  lines  at  such  an  angle  as  practically  to  control 
nearly  3,000  feet  of  the  vein.  With  all  proper  respect  for  this  gentle- 
man's opinion,  I  cannot  accept  his  views  upon  this  subject  at  all.  I 
think  it  clear  that  the  law  intended  these  lines  to  be  laid  substantially 
at  right  angles  to  the  general  course  or  strike  of  the  vein,  since  in  no 
other  way  could  the  locator  be  limited  to  a  given  length  along  the 
ledge. 

"This  seems  to  have  been  the  view  taken  of  the  law  by  the  three 
learned  judges  who  sat  in  the  Richmond-Eureka  Case.  It  is  true  that 
they  hold  that  the  provisions  of  the  law  of  1872  requiring  parallel 
end  lines  may  be  regarded  as  merely  directory,  so  that  a  failure  to  so 
lay  them  would  not  invalidate  the  location;  but  I  think  the  whole 
force  of  the  observations  of  the  court  upon  this  point  lies  in  their 
assumption  that  it  makes  no  difference  how  the  miner  may  choose 
to  locate  his  end  lines,  since  the  law  limits  his  right  to  that  section 
of  the  lode  or  ledge  carved  out  by  vertical  planes  drawn  through 
the  extreme  points  or  ends  of  his  line  of  location  at  right  angles  with 
a  line  representing  the  general  course  or  strike  of  the  lode.  In  this 
same  case,  on  appeal  to  the  supreme  court  of  the  United  States, 
(103  U.  S.  844,)  the  fact  is  noted  that  the  'zone,'  as  it  is  called,  dips 
at  right  angles  to  its  course  or  strike,  and  that  the  extension  down- 
wards of  the  compromise  line,  which  was  coincident  with  the  end 
lines  of  the  adjacent  claims,  followed  the  dip  of  the  zone. 

"I  have  been  led  into  some  digression  from  the  strict  line  of  my 
argument.  Bearing  in  mind  the  descriptions  heretofore  given  of  the 
two  lines  of  outcrop  on  Custer  hill,  if  we  might  suppose  that  the 
outcrop  along  the  northerly  face  were  nearly  vertical,  I  do  not  see 


LODES    OR   VEINS   AND   THEIR   APEXES.  39 

how  it  could  be  seriously  contended  that  such  outcrop,  under  the 
circumstances,  constituted  the  top  or  apex  of  this  stratum  of  quartz- 
ite.  Such  a  conclusion  could  only  be  reached,  it  seems  to  me,  by 
shutting  one's  eyes  to  every  feature  of  the  case,  except  the  one  fact 
that  there  was  an  edge  at  or  near  the  surface,  which  was  therefore 
the  top  or  apex  of  the  vein.  This  I  cannot  do  without  such  a  viola- 
tion of  the  ordinary  use  of  words,  and,  with  all  the  respect  and 
deference  which  I  feel  for  the  opinions  of  the  learned  counsel  for 
the  defense,  I  must  say  without  such  a  transgression  of  the  dictates 
of  a  sound  common-sense  view  of  the  situation,  as,  in  my  judgment, 
the  statute  does  not  contemplate.  Nor  can  I  see  that  there  would 
be  any  difference  whatever  in  the  principle  were  this  outcrop  to  be 
found  at  an  angle  of  45  deg.,  or,  as  it  is,  at  an  angle  of  about  S  deg. 
from  the  horizontal.  I  am  compelled,  therefore,  to  hold  that  this  out- 
crop found  in  the  Sitting  Bull  location  is  not  the  top  or  apex  of  this 
vein,  lode,  or  ledge,  and  that  such  top  or  apex  is  not  within  that  lo- 
cation. I  must  regard  that  outcrop  as  merely  an  exposure  of  the 
edge  of  the  vein  on  the  line  of  its  dip. 

"But,  thirdly,  if  this  is  not  the  top  or  apex  of  the  vein,  then  nei- 
ther is  it  its  longitudinal  course.  That  by  the  use  of  the  term  'along 
the  vein'  the  statute  requires  a  location  to  be  made  along  its  longi- 
tudinal course  or  strike  I  shall  not  stop  to  argue.  Such,  again,  was 
the  opinion  of  the  court  in  the  Eureka-Richmond  Case.  But  by  the 
term  'strike,'  in  this  connection,  I  do  not  mean  the  technical  true 
strike  of  the  engineer ;  the  line  which  would  be  cut  by  a  horizontal 
plane.  Such  a  requirement  would  be  in  many  cases  impracticable. 
The  supreme  court  of  the  United  States  has  said  in  the  Flagstaif 
case,  [Mining  Co.  v.  Tarbet,  98  U.  S.  463J  that  'the  most  practi- 
cable rule  is  to  regard  the  course  of  the  vein  as  that  which  is  indi- 
cated bv  surface  outcrop,  or  surface  explorations  and  workings ;' 
and  I  have  no  disposition,  as  I  should  not  be  at  liberty,  to  disregard 
the  doctrine  of  that  case,  so  far  as  it  is  applicable  to  the  circum- 
stances. Injh&t  case  a  line  of  outcrop  ran  up  a  hill  nearly  in  a 
westerly  direction.  A  level  line  run  somewhere  beneath  the  surface 
showid'  the  'strike'"  to  be  north  50  "deg.  west.  The  line  of  the  Titus 
location  was  not  far  from  midway  between  these  two,  and  the  court 
held,  as  against  the  Flagstaff,  which  was  laid  across  these  hues,  that 
the  location  of  the  Titus  was  a  good  one,  using  the  language  above 
quoted.  There,  moreover,  the  dip  of  the  vein  was  north-eastward, 
and  no  such  question  arose  as  that  involved  in  this  case.  In  view  of 
the  principles  already  laid  down,  I  think  that  the  longitudinal  course 
of  this  zone  of  quartzite  is  indicated  by  the  croppings  on  the  west 
face  of  the  hill,  and  not  by  those  on  the  northerly  slope. 

"After  what  has  been  said,  it  would  seem  unnecessary  to  consider 
whether  this  vein  so  far  departs  from  a  perpendicular  in  its  course 
downward  as  to  extend  outside  the  vertically  extended  side  lines  of 
defendants'  location,   and  through  the  intervening  ground  to  the 


D 


oi^ 


'  h  f^ 


CHvwtv 

/M-d  .  i^  i^i^v,'  K^/} .    /<ft=^  m.>xf^  fu^  i^ue- 

40  -        PRELIMINARY   DEFINITIONS.  \       I  t     f 

y^o^,      ground  in  controversy,— '-such  could  not  be  the  case  consistently  with 
'    •  the  facts  already  ascertained.    It  may  be  conceded  as,  indeed,   a 

mathematical  conclusion   from  the  facts,   that  by  extending  drifts 
from  the  Sitting  Bull  location  through  its  vertically  extended  south 
side  line,  in  any  direction  upon  the  vein  east  of  south,  a  downward 
Oa.         inclination  would  be  found,  and  that  such  is  the  fact  with  regard  to 
\  I..    '      the  main  working  tunnel,  which  extends  to  the  ground  in  contro- 
versy; but,  clearly,  this  is  not  what  the  statute  contemplated,  and, 
if  I  am  right  in  my  other  conclusions,  probably  this  proposition  would 
not  be  contested." 
^;  ^  ;         We  concur  in  the  views  thus  expressed. 
r>  ^     J         It  was  unnecessary  for  the  court  to  determine  affirmatively  the 
^^^^  precise  location  of  the  top  or  apex  of  the  vein  in  question.   The  court 

-vi_y-        did  find  "that  the  outcrop  on  the  westerly  slope  of  the  hill  above  de- 
>-/ .  r    scribed  was  the  summit,  top,  or  apex  of  said  zone,  ledge,  or  stratum 
'  of  quartzite,"  but  did  not  determine  whether  or  not  it  was  technically 

the  top  or  apex  of  the  vein.    Possibly  that  might  have  involved  an 
•   I    -      inquiry  as  to  the  continuity  of  its  mineralization  to  the  summit.   The 
r^      I     question  the  district  court  had  to  determine  was  whether  the  top 
&  /v-<Vi/  or  apex  of  this  vein  was  or  was  not  within  the  Sitting  Bull  location. 
,^__^^^^  Alt  determined  that  it  was  not,  and,  as  we  think,  correctly. 

^^        The  judgment  and  orders  appealed  from  are  affirmed,  and  the  find- 
^\\\   ings  and  conclusions  of  the  district  court  are  adopted  by  this  court. ^° 

)  Ui^Ce.  ft-^  -^  f  ^^ 

^>JS*>K  ^^  TABOR  ET  AL.  V.  DEx/eR  et  al.  ' 

^     '\         "NEW  DISCOVERY"  LODE  v.  "LITTLE  CHIEF"  LODE. 

......jrol^  *  •'  1878.     Circuit  Court,  D.  Colorado. 

■    t^   \JC^       23  Fed.  615,  9  Morr.  Min.  Rep.  614,  Carp.  Min.  Code,  71. 

\i^6^        Hallett,  District  Judge. — This  is  a  liilLior...an  iajimciionJiy 

-^  J*  parties  owning  the  New  Discovery  lode,  in  California  mining  dis- 
trict, against  the  owners  of  an  adjoining  claim  called  the  "Lit^ 

k4A^  jChief."  It  Ts  not  alleged  that  the  defendants  have  entered  upon^or 
into  the  New  Discovery  ground,  or  that  they  have  in  any  way  inter- 

^^  fered  with  plaintiffs'  possession  within  the  limits  of  the  New  Dis- 

^^r^  covery  location.  The  charge  is  that  plaintiffs'  lode  descends  into  the 
Little  Chief's  ground  on  its  dip,  and  that  defendants  are  there  mining 

vf  J  and  exhausting  the  ore.  In  other  words,  plaintiffs  contend  that  the 
*'     top  of  the  lode  is  in  their  ground,  and  that  they  have  the  right  to 

pt^r        follow  upon  its  downward  course  and  through  adjoining  territory. 

*T^        ft  To  maintain  this  position,  it  is  necessary  to  show  that  the  lode  is  in 

•         J^        ^"For  diagram  and  explanation  of  the  case  see  1  Lindley  on  Mines  (2  ed.) 
y^^^^    §310  1  ^  ^  r- 


V'^''^'^"^  LODES    OR   VEINS   AND   THEIR   APEXES.  4I    ^  /  f-V*v, 

place,  within  the  meaning  of  section  2320,  Rev.  St.  U.  S.   And  this""" 
depends  upon  the  position  of  th^Dxe  or  vein  matter  in  the  eartli^s^S^v-^ 
wKetlTer  th^  inclosing  massTs  fixed  and  immovable,  more  than  upon   ^^'.^ 
the  character  of  the  ore  itself.   Whether  the  ore  is  loose  and  friable^^^X^^" 
or  very  hard,  if  the  inclosing  walls  are  country  rock,  it  may  be  lo-    ^A  ^^ 
cated  as  a  vein  or  lode.  But  if  the  ore  is  on  top  of  the  ground,  or  has  /  hr^ 

no  other  covering  than  the  superficial  deposit,  which  is  called  ^^" tUtH-^^,_^ 
luvium,  diluvium,  drift,  or  debris,  it  is  not  a  lode  or  vein  within  the  p 

meaning  of  the  act,  which  may  be  followed  beyond  the  lines  of  the  l"*-'*^    j|/ 
location.   In  this  bill  it  is  alleged  that  the  overlying  material  is  boul-^^y    (jy 
ders  and  gravel,  which  cannot  be  in  place  as  required  by  the  act,  L.^^^^^^1 
Not  much  is  known  to  the  court  of  the  deposits  on  Fryer  Hill,  but  ^^^"^'^^'^ 
it  would  seem  from  the  allegations  in  this  bill  that  they  differ  ma-  (^^^j^^a^- 
terially  from  the  Iron  mine,  which  has  a  hanging  wall  as  well  as  a  ^^    */ 
foot  wall.    For  the  decision  of  this  motion  it  is  enough  to  say,  that  *^>^     ^ 
wdiere  the  mass  overlying  the  ore  is  a  mere  drift,  or  a  loose  deposit,  j2(J^__^j_^^ 
the  ore  is  not  "in  place,"  within  the  meaning  of  the  act.   Upon  prin-  j 

ciples  recently  explained,  a  location  on  such  a  deposit  of  ore  may  be  A  C.4>^' 
sufficient  to  hold  all  that  lies  within  the  lines ;  but  it  can  not  give  a  tj^^V.  > 
riprt'to  ore  in  other  territory,  although  the  ore  body  may  extend  t/J-^^ 
bey  ondthe  lines .   The  motion  will  be  denied.  .^C,^jy^^  C>3ici^  Y)   ^'''*'-'*^" 

GRAND  CENTRAL  MIN.  CO.  v.  MAMMOTH  MIN.  CO.    ^^^^^  -f 
1905.     Supreme  Court  of  Utah.     29  Utah  490,  83  Pac.  648.  t'V^^  7'  ( 

Action  by  the  Grand  Central  Mining  Company  against  the  Mam- ^^^^ 
moth  Mining  Company.    From  a  judgment  in  favor  of  plaintiff,  de-  Wv^^ik^ 
fendant  appeals.    Affirmed.  L^r-^ 

The  plaintiff  commenced  this  action  on  the  9th  day  of  September,  ^ 
1899,  by  filing  a  complaint  in  trespass,  in  the  first  count  of  which  it  t*i     Cv 
alleged  that  the  defendant  had  unlawfully  mined,  extracted,  and  re-  ^a^  j^ 
moved  from  beneath  the  surface  of  the  Silveropolis  mining  claim  '>'^^ 
ores  in  quantity  exceeding  6,000  tons,  of  the  value  of  $300,000,  and  AJ^^M  C^ 
demanded  judgment  for  "that  sum;  and  in  the  second  count,  after    a -^^^^ 
having  made  similar  allegations  as  to  the  extraction  and  value_  of    1 
ores,  it  asked  that  the  defendant  be  restrained  from  further  mining (^^ykJjv 
operations  underneath  the  surface  of  that  claim,  pending  the  trial  of         ^   ^ 
the  cause.   On  October  16,  1899,  the  defendant  filed  an  answer  and«^^^H«<jt.JJ^I 
counterclaim,  alleging  affirmatively,  inter  alia,  that  the  ore  bodies  '^\  ^  y 
in  controversy  were  in  a  vein  which  had  its  apex  in  the  first  northern  *  "^ 

extension  of  the  Mammoth  lode,   designated  as   "U.   S.  Lot   No.  ^  ^...n^ 

og  "       *       ♦       * 

On  November  20,  1901,  the  defendant  filed  its  third  amended  an- 
swer and  counterclaim.     *     *     *     The  contention  of  the  defendant  V'^^^  ^ 

Zr^iu^  s^  vwvw^}  L-e">"W^  ^  yjrOt,  vis;  1*^;^' 


rlii^iiAi    t.—x'/K    S^wH:^  <S^  in  AXn-v^  ,  ^yu^  ^tl^h^^-ko^ 

^lupf    Cv^KaA^*)^      U^-^fC^    V^^^  1^'^^    ^'^^•t^ff^pC^'-- 
cJ;V>    -~       42  rT'  -■        PRELIMINARY   DEFINITIONS.  i  1 

throughout  the  trial  was  that  the  ore  bodies  in  dispute  lie  in  a  vein 
.  -  "^  -  which  has  its  apex  in  lot  38,  and  which,  on  its  strike  and  at  its  apex 
"~  crosses  the  southerly  end  line  of  that  lot,  and  continues  within  its 

"^  ' '  '         limits  to  a  point  at  least  1,100  feet  north  from  such  end  line  ;  while  on 

the  part  of  the  plaintiff  it  was  insisted  that  the  vein,  which  at  its 
v" -,..  apex  and  on  its  course  crosses  the  southerly  end  line  of  lot  38,  wholly 

r'^*^"  departs  from  the  lot  at  a  point  695  feet  north  from  the  southwest 
''"^    ij       corner  thereof,  where  it  crosses  the  westerly  side  line.     *     *     * 

y  eUFT    h^  f«~c2H-^cA-¥^        Diagram  No.  i. 

fjs^  Diagram  No.  i,  given  below,  is  in  part  a  copy  of  Defendant's  Ex- 

^^  hibits  A  and  K  and  Plaintiff's  Exhibit  12,  surface  maps. 

!*^'^  On  this  diagram  are  shown,  so  far  as  material  here,  the  surface 

V  Ujk^^/  boundaries  of  the  properties  owned  by  the  parties.  The  first  northern 
f  rX^ci^^  extension  of  the  Mammoth  claim  (U.  S.  lot  No.  38),  the  Jenkins 
1  *^«*^  (U.  S.  lot  No.  93),  the  Golden  King  (U.  S.  lot  No.  92),  the  Brad- 
^  <so^  ley  (U.  S.  lot  No.  158),  the  Young  Mammoth  (U.  S.  lot  No.  94), 
,^!\  and  the  Schey  mining  claims  are  owned  by  the  defendant ;  and  the 

^"^  Silveropolis  (U.  S.  lot  135),  the  Consort  (U.  S.  lot  No.  272),  and 

r?\~l^'v..  the  King  William  mining  claims  are  owned  by  the  plaintiff.    The 
.  »  „  ground  in  dispute  is  that  part  of  the  Silveropolis  and  Consort  mining 
■^^^^^^  '  "claims  lying  south  of  the  1,100-foot  line.    The  stipple  shading  on 
^  6fe>  «-».«#i)lot  38,  which  overlaps  the  claim,  shows  the  width  of  the  apex  and 
w„^_j.      ^i  course  of  the  vein  as  claimed  by  the  defendant.    The  lines  W-U, 
>,  "^  U-T,  and  T-S  represent  the  course  or  strike  of  the  vein  as  claimed 

'  ]        by  the  plaintiff,  and  indicate  the  line  of  stopping  in  the  mines  along 
"*        the  vein,  claimed  by  the  defendant  to  be  on  its  dip,  by  the  plaintiff 
"^    ^'■^•^^      on  its  strike.   The  point  U  is  695  feet  from  the  southwest  corner  of 
Av-*^*-*-  lot  38,  and  is  where  the  plaintiff  claims  the  vein  changes  from  a 
•■  .     A        course  N.  15°  E.  to  a  course  N.  51°  30'  W.,  true,  and  departs  wholly 
^     ^        from  the  limits  of  lot  38,  continuing  in  that  course  to  the  point  T, 
,A-v  cA^       when  it  again  changes,  and  thence  continues  N.  about  10°  to  15°  W. 
^    C^       in  the  direction  of  the  point  S.    The  line  K-K  indicates  a  section 
I    i     -Y^    through  the  Peterson  winze  in  the  Grand  Central  mine,  H-H  a  sec- 
"7  _^  tion  through  southern  end  of  Silveropolis  claim,  E-E  a  plane  about 

-A^^'^i^  u    150  feet  north  of  the  south  end  line  of  that  claim,  and  F-F  a  longi- 
'      »    y       tudinal  projection.   Numerous  open  cuts,  made  by  the  defendant  for 
4^  C^Pa,\a^  the  purposes  of  this  case  and  claimed  by  it  to  expose  the  apex  of  the 
-^  »rw->     vein,  are  indicated  on  lot  38.  Tunnels,  Mammoth  and  Grand  Central 
^jbi  (0     shafts,  and  other  points  of  more  or  less  importance  are  also  located 
t'     on  the  diagram.  The  1,100  and  1,700  foot  lines  and  the  southerly  end 
jj  f^^    line  of  the  Silveropolis  mining  claim  extended  likewise  appear  there- 
-V        on.    Some  of  the  principal  stopes  are  indicated  thereon,  including 
^-^       the  Cunningham  of  the  Mammoth,  where  the  plaintiff  insists  the  vein 
''      '  (\-,  [  wholly  departs  from  lot  38,  and  the  Butterfly  of  the  Grand  Central. 
The  dykes  also  appear. 


<5- 


t":-" 


LODES  OR  VEINS  AND  THEIR  APEXES. 


^>-  J 


^ 


-^  44  ,  PRELIMINARY   DEFINITIONS. 

/|3c^/  In  determining  the  rights  of  the  parties  to  the  ore  bodies  in  dis- 

»  '  pute,  lot  38  is  of  principal  importance.    That  lot  or  claim  was  pat- 

>^  <'      '  ented  May  16,  1873,  and  all  the  other  claims  herein  referred  to  are 

^.  junior  to  it  as  to  location  and  patent.    Lot  38  is  200  feet  wide  and 

_   *  3,000  feet  long,  and  from  its  southerly  end  line  its  side  lines  run 

rj^i^-y-^,  N.  18°  55'  E.,  which  direction  indicates  the  general  course  of  the 

apex  of  the  vein,  as  claimed  by  the  defendant.  fc  \^         / 

-f^  "^   ur-fvJBte  y^'^^^  i,*^ir-0^      Diagram  No.  2.  S^^-^  ^ 

Diagram  No.  2  is  produced  from  Defendant's  Exhibits  B,  C,  D, 
'^^■^S,     F.  G.  H,  and  I,  and  Plaintiff's  Exhibits  Nos.  i,  2,  3,6,  7,  8,  and 
^    ^\  16,  maps  representing  portions  of  the  mines  of  the  parties. 
h  kv^K'    On  this  diagram  each  one  of  the  principal  stopes,  shown  by  the 

. t/  evidence  and  material  to  this  decision,  is  represented  and  marked 

>\^^  ^      with  a  figure  corresponding  with  the  number  of  the  level  on  which 
'^''^  the  stope  is  located.    They  show  where,  in  the  various  tunnels  and 
parts  of  both  mines,  merchantable  ore  was  found.    Those  of  most 
I'^rt'        importance,  in  the  consideration  of  the  questions  before  the  court,  are 
^  the  Gillespie,  Apex,  Gulf,  Flanders,  Burleigh,  Naylor,  Cunningham, 

^  U^l/-i  Caved,  Klondyke,  Betsy,  and  Butterfly  stopes.  There  are  also  desig- 
n?*^-c     nated  on  the  diagram  tunnels  and  drifts  where  no  ore  was  found 
.    .        ?    and  no  stoping  done,  being  driven  into  barren  ground  in  search  for 
U/ir^  ore.  The  Mammoth  and  Grand  Central  shafts,  the  Tranter  drift,  the 
^W^'  drift  to  the  north  end  line  Golden  King  claim  800  level,  the  drift 
♦So^«^f  connections  between  the  Mammoth  and  Grand  Central  mines,  east 
I  cJu        and  west  cross-cuts,  Turner  raise,  Dago  raise,  O'Brien  ^vip^  Bush 
fc-^vJiJi    winze,  the  Condon  and  Golden  King  tunnels,  and  other  objects,,  to  Jt 
J^^        which  reference  is  made  herein,  are  designated  on  the  diagram,  to  ^Jj^ 
'?p  show,  as  near  as  may  be,  their  location  and  character,  and  to  enable*^, 

'\\zUjL^  one  to  judge  the  more  readily  of  the  indications  they  furnish,  as   ">  s 
iTj'jbearing  upon  the  reasonableness  or  unreasonableness  of  the  theories      y 
5 "Jyf*^  'of  either  of  the  parties  respecting  the  strike  of  the  vein  or  lode,  the     s. 
i^e>-y       location  of  the  apex,  its  width,  the  dip  of  the  vein  westerly,  and  its 
i/sy^u^    continuity  and  persistency  on  its  dip  downward  to  the  ore  bodies  in 

Uh^th'r^'TiT:iiJi^"^lr^.^i^^A^  ^<^UA  ^-^  -^^ 

_^_:^  J  Va«^  ^^    '     v/v.^^  ^  ';>   -H^  C*/^  f^^A-'^ 
'  V  -       _  »s     .1-^:  L^  ti>A   IaH^  j^\^    "fioo  _Ctt  >— ji  ^i«^<aw 


-(L 


LODES  Or  veins  and  their  apexes. 


45  a^^rtv**' 


f-,  t 


^     ^     fc>N 

VwvSJt   h" 


PRELIMINARY   DEFINITIONS. 


JJp.-*-:^ 


Diagram  No.  5. 


^^"^"^         Diagram  No.  5  is  produced  from  Plaintiff's  Exhibits  17  and  26, 
maps  of  projections  on  line  of  stoping  in  both  Mammoth  and  Grand 
'     Central  mines. 


fj^xpir/ 


D/jAG/^aa^  NbS 


This  diagram  represents  projections  of  the  mines  of  both  parties. 
The  contour  of  the  surface  along  the  line  of  projection,  the  different 
levels  of  the  Mammoth  mine  down  to  the  1,900  and  of  the  Grand 
Central  to  the  1,100,  the  different  stopes,  and  line  of  stoping  show- 
ing the  line  of  greatest  mineralization,  are  all  indicated  on  this  dia- 
gram. It  presents  a  comprehensive  view  of  the  development  and 
explorations  of  these  vast  properties.  The  plane  W-U,  extends  from 
the  southerly  end  line  of  lot  38,  on  a  course  N.  7°  15'  E.,  true,  and 
the  projection  presents  a  longitudinal  section  of  the  vein,  on  its  strike 


LODES    OR   VEINS    AND   THEIR   APEXES.  47 

and  dip,  within  the  Hmits  of  lot  38  to  the  point  U,  to  which  point  the 
defendant  is  admittedly  the  owner  of  the  vein.  This  section  shows 
the  "east  or  back  fissure,"  on  its  dip  to  the  deep  to  be  almost  verti- 
cal. Here  the  apex  of  the  vein  is  also  admittedly  within  the  limits 
of  lot  38.  The  plane  U-T  extends  from  the  point  U,  near  the  west 
side  line  of  lot  38,  where  the  plaintiff  claims  the  vein  departs  from 
that  lot,  on  a  course  N.  51°  30''  W.,  true,  to  the  point  T.  The  plain- 
tiff insists  that  the  projection  on  this  plane  exposes  the  vein  on  its 
strike  and  dip,  while  tlie  defendant  contends  that  its  dip  only  is  ex- 
posed, and  that  the  apex  is  still  within  lot  38,  and  its  strike  parallel 
with  the  side  lines  of  that  lot.  The  contentions  of  the  parties  are  the 
same  as  to  the  projection  on  the  plane  T-S,  the  course  of  which 
plane  is  N.  2°  15'  E.,  true.  The  dispute  as  to  these  two  projections 
is  as  to  whether  they  expose  the  ore  bodies  on  the  strike  or  on  the 
dip  of  the  vein.     *     *     * 

The  case  was  thus  submitted  to  the  court  and  jury  with  evidence 
relating  to  all  parts  of  the  properties,  surface  and  underground,  in 
the  greatest  detail,  and,  the  jury  returning  a  verdict  upon  the  special 
issues  in  favor  of  the  plaintiff,  the  court  adopted  the  verdict,  and 
found,  agreeably  with  it,  that  the  top  or  apex  of  the  vein  continued, 
from  the  southerly  end  line  of  the  first  northern  extension  of  the 
Mammoth,  lot  38,  to  the  place  w^here  the  Cunningham  stope  at  its 
northerly  edge  or  end  crossed  in  its  northwesterly  course  the  west 
side  line  of  that  lot,  such  point  or  place  being,  as  found,  690  feet 
north  of  such  southerly  end  line,  and  90  feet  south  of  the  southerly 
end  line  of  the  Silveropolis  mining  claim,  extended  easterly  in  its 
own  direction  across  lot  38 ;  that  at  that  point  the  vein  on  its  strike 
and  at  its  apex  wholly  departs  from  lot  38,  and  does  not  continue 
within  that  lot  between  the  planes  drawn  through  the  Silveropolis 
southerly  end  line  so  extended  and  the  1,1 00- foot  line;  that  such 
apex  does  not  continue  north  of  such  end  line  within  the  limits  of 
lot  38 ;  that  between  such  planes,  on  that  end  line  so  extended  and  on 
the  1,100-foot  line,  there  is  no  apex  or  part  of  an  apex  of  any  vein, 
lode,  or  ledge,  which  vein,  lode,  or  ledge  on  its  dip  extends  to  and 
includes  the  ore  bodies  known  to  exist  beneath  the  surface  of  the 
Silveropolis  and  Consort  Mining  claims,  between  those  planes ;  and 
that  the  apex  of  the  vein  or  lode  which  is  in  the  south  end  of  lot  38 
does  not  continue  in  that  lot  north  of  the  Silveropolis  south  end 
line  extended.  The  decree  is  in  harmony  with  these  findings,  and 
directs  that  the  defendant's  counterclaim  be  dismissed. 

Notwithstanding  this  decision,  which  was  substantially  the  same 
as  that  at  the  previous  trial,  tlie  judge  filed,  separate  and  apart  from 
the  findings  and  decree,  a  written  opinion,  in  which  he  concluded 
that  there  are  two  veins  in  the  Mammoth  ground ;  the  one  running 
from  the  shaft  north  at  least  to  the  1,700- foot  line,  and  the  other 
lying  to  the  east.  In  this  opinion  he  argued  that  the  ore  bodies  in 
controversy  belonged  to  a  vein  which  had  its  apex  in  the  Golden 


48  PRELIMINARY   DEFINITIONS. 

King  and  Bradley  mining  claims,  and  could  be  recovered  by  the  de- 
fendant in  a  proper  proceeding.  Thereafter  the  defendant  asked 
leave  to  amend  its  counterclaim,  and  later  to  file  an  original  counter- 
claim, in  accordance  with  the  expressed  views  of  the  court.  These 
requests  being  refused,  the  defendant  prosecuted  its  appeal. 

This  record  presents  two  principal  questions  for  determination: 
First.  Whether  the  court  erred  in  finding  that  the  vein  mentioned  in 
the  counterclaim  upon  which  the  trial  was  had,  at  its  apex  and  on  its 
strike,  leaves  lot  38  at  a  point  690  feet  north  of  the  south  end  line 
of  that  lot.  Second.  Whether  the  court  erred  in  refusing  to  permit 
the  defendant  to  file  the  amendment  to  its  counterclaim,  and  in  re- 
fusing to  permit  the  filing  of  its  proposed  original  counterclaim,  in 
each  of  which  it  was  alleged  that  the  vein  found  at  the  south  end  of 
lot  38  did,  at  its  apex  and  on  its  strike,  wholly  depart  from  that  lot 
at  the  point  found  by  the  court,  and  that  its  apex  beyond  that  point 
was  in  the  Golden  King  and  Bradley  mining  claims.  All  other  ques- 
tions presented  are  subordinate  to  and  in  support  of  one  or  the  other 
of  these  two. 

Bartch,  C.  J.^^ — The  main  question,  which  resulted  from  the  is- 
sues raised  by  the  pleadings  that  formed  the  basis  of  inquiry  and  sub- 
mission at  the  trial  and  which  we  will  consider  in  the  first  instance,  is 
whether  the  court  erred  in  finding  that  the  vein  or  lode  mentioned 
in  those  pleadings,  at  its  apex  and  on  its  north-westerly  course  or 
strike,  crosses  the  western  side  line  of  lot  38  and  wholly  departs 
from  that  lot  at  a  point  690  feet  north  of  its  south  end  line,  and  north 
of  that  point  does  not  continue,  either  at  its  apex  or  on  its  strike  to 
or  beyond  the  1,1 00- foot  line  within  the  limits  of  lot  38,  and  that 
there  is  no  vein  or  lode  having  an  apex  or  any  part  thereof  within  the 
limits  of  lot  38  north  of  the  southerly  end  line  of  the  Silveropolis 
mining  claim  extended  eastward  in  its  own  direction,  and  south  of 
the  1,100-foot  line,  which  on  its  dip  extends  to  and  includes  any  of 
the  ore  bodies  existing  underneath  the  surface  of  the  Silveropolis 
and  Consort  mining  claims  south  of  the  1,100-foot  line.  This  is 
principally  a  question  of  fact,  and  must  be  considered  in  view  of  the 
law  of  Congress  respecting  extralateral  rights.  *  *  *  The  prem- 
ises are  of  very  great  value.  It  would  be  idle  to  say  that  upon  the 
result  of  the  case  made  by  the  counterclaim  and  answer  depends  but 
the  ownership  of  the  ore  bodies  in  the  Silveropolis  and  Consort  min- 
ing claims  south  of  the  1,100-foot  line.  It  is  plain  to  be  seen,  with- 
out demonstration,  that,  if  the  ore  bodies  in  dispute  herein  are  em- 
braced in  a  vein  having  its  apex  in  lot  38  north  of  the  Silveropolis 
south  end  line  extended,  the  ore  bodies  north  of  the  1,1 00- foot  line 
in  the  same  claims  are  parts  of  and  belong  to  the  same  vein.  The 
ultimate  question  involved  is  therefore  not  merely  the  ownership  of 
a  few  ore  bodies  of  the  alleged  value  of  $300,000,  but  of  the  owner- 

"  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


LODES    OR   VEINS    AND   THEIR   APEXES.  49 

ship  of  ore  bodies  or  of  a  vein  of  ore  doubtless  worth  several  mil- 
lions of  dollars,     *     *     * 

In  determining  this  question  the  surface  of  lot  38,  the  extralateral 
rights  of  that  lot,  the  dip  and  strike  of  the  vein,  and  the  under- 
ground workings  of  the  mines  are  important  factors.  The  extra- 
lateral  rights,  upon  which  the  appellant  has  founded  its  claim  to  the 
ore  bodies  in  dispute,  accrued  to  it  as  owner  of  lot  38  by  virtue  of 
the  provisions  of  section  2322  of  the  Revised  Statutes  of  the  United 
States  [U.  S.  Comp.  St.  1901,  p.  1425],  whereby  the  owner  of  a 
mining  claim  has  a  right  to  follow,  between  vertical  planes  drawn 
downward  through  the  end  lines  of  the  location,  a  vein  having  its 
apex  within  the  limits  of  such  claim  on  its  dip  to  the  deep,  although 
such  vein  may  so  far  depart  from  a  perpendicular  in  its  course  down- 
ward as  to  extend  outside  of  the  vertical  side  lines  of  the  surface 
location.  The  ore  bodies  in  controversy,  however,  being  located 
without  the  limits  of  lot  38,  and  underneath  the  surface  of  the  Silver- 
opolis  and  Consort  mining  claims,  the  appellant,  notwithstanding  the 
law  of  Congress,  is  met  at  the  very  threshold  with  the  presumption 
that  they  belong  to  the  respondent,  the  owner  of  those  claims.  Where 
a  person,  natural  or  artificial,  owns  a  patented  mining  claim,  al- 
though the  statute  reserves  the  right  to  locators  of  other  mining 
claims  to  follow  their  veins  under  its  surface  and  extract  ore,  he  is 
presumed  to  own  all  the  ore  within  planes  drawn  vertically  down- 
ward to  the  deep  through  the  boundary  lines  of  such  claim,  as  well 
as  the  surface  and  everything  else  appurtenant  to  the  claim ;  and 
such  presumption  continues  until  some  other  locator  or  owner  estab- 
lishes the  fact  that  he  is  entitled  to  exercise  the  reserved  rights  by 
virtue  of  the  statute.  "Within  the  lines  of  each  location  the  owner 
shall  be  regarded  as  having  full  right  to  all  that  may  be  found,  until 
some  one  can  show  a  clear  title  to  it  as  a  part  of  some  lode  or  vein 
having  its  top  and  apex  in  other  territory.  To  state  the  proposition 
in  other  word's,  we  may  say  that  there  is  a  presumption  of  ownership 
in  every  locator  as  to  the  territory  covered  by  his  location,  and  with- 
in his  own  lines  he  shall  be  regarded  as  the  owner  of  all  valuable 
deposits,  until  some  one  shall  show  by  preponderance  of  testimony 
that  such  deposits  belong  to  another  lode  having  its  top  and  apex 
elsewhere."  Leadville  Min.  Co.  v.  Fitzgerald,  4  Mor.  Min.  Rep.  380 ; 
Con.  Wyo.  Gold  Llin.  Co.  v.  Champion  Min.  Co.  (C.  C.)  63  Fed. 
540;  Doe  V.  Waterloo  Min.  Co.  (C.  C.)  54  Fed.  935;  i  Snyder  on 
Mines,  §§  766,  783,  789. 

To  overthrow  this  presumption  and  establish  its  right  to  enter  its 
neighbor's  ground  to  extract  ore,  the  burden  of  proof  was  upon  the 
defendant,  and  it  was  incumbent  upon  it  to  show,  by  a  preponder- 
ance of  the  evidence,  not  only  that  the  apex  and  strike  of  the  vein 
were  in  lot  38,  north  of  the  south  end  line  of  the  Silveropolis  mining 
claim  extended,  and  to  the  1,100-foot  line,  but  also  to  show  that,  be- 
tween planes  drawn  vertically  downward  through  that  end  line  and 
4 — Mining  Law 


50  PRELIMINARY   DEFINITIONS. 

the  i,ioo-foot  line,  the  vein  from  its  apex  on  its  dip  was  continuous ; 
that  its  continuity  extended  to  and  through  respondent's  ground; 
and  that  the  ore  bodies  in  question  formed  a  part  of  the  vein.  In 
other  words,  the  burden  was  upon  the  appellant  to  show  by  'a  pre- 
ponderance of  the  evidence  whatever  was  necessary  to  bring  it  with- 
in the  terms  of  the  statute,  in  order  to  entitle  it  to  the  disputed  ore 
bodies,  or  to  justify  it  in  the  extraction  of  ore  from  its  neighbor's 
ground.  Doe  v.  Waterloo  Min.  Co.,  supra;  Leadville  ]\Iin.  Co.  v. 
Fitzgerald,  supra;  Penn.  Con.  Min.  Co.  v.  G.  V.  Expel.  Co.  (C.  C.) 
117  Fed.  509;  Con.  Wyo.  Gold  Min.  Co.  v.  Champion  Min.  Co., 
supra;  Mining  Co.  v.  Campbell,  17  Colo.  267,  29  Pac.  513. 

We  concede,  as  claimed  by  the  appellant,  that  a  patent  to  a  mining 
claim  raises  a  conclusive  presumption  that  there  is  the  apex  of  a 
vein  within  the  patented  ground  (i  Lindley  on  Mines,  §  305)  ;  but 
there  is  no  presumption  that  it  is  the  apex  of  the  vein  in  dispute,  and 
such  presumption  applies  equally  to  the  Silveropolis  and  Consort 
mining  claims  as  to  lot  38,  and  does  not  shift  the  burden  of  proof 
in  this  case  as  to  the  apex  and  continuity  of  the  vein  and  ore  in  con- 
troversy. The  appellant,  however,  insists  that  the  evidence  clearly 
establishes  that  the  apex  and  strike  of  the  disputed  vein  do  in  fact 
continue  in  lot  38  to  and  beyond  the  1,1 00- foot  Hne,  that  the  vein  is 
persistent  in  its  continuity  on  its  dip  to  the  ore  bodies  in  question, 
that  such  ore  bodies  constitute  a  part  of  the  vein,  and  that  the  court 
erred  in  its  findings,  inter  alia,  that  the  vein,  at  its  apex  and  on  its 
strike,  wholly  departed  from  lot  38  at  the  point  designated.^  on  a 
northwest  course,  because,  as  is  claimed,  the  evidence  is  insufficient 
to  sustain  such  findings.  In  reply  to  this  contention,  the  respondent 
insists  that  as  to  whether  the  vein,  claimed  to  include  the  ore  bodies, 
at  its  apex  and  on  its  strike  continues  in  lot  38  to  and  beyond  the 
1, 1 00- foot  line,  or  whether  it  departs  wholly  from  that  lot,  on  its 
strike,  at  the  point  found  by  the  court,  the  evidence  is  conflicting, 
and  invokes  the  rule,  long  firmly  established  within  this  jurisdiction, 
that  where  in  a  case  in  equity  there  is  a  substantial  conflict  in  the 
evidence  this  court  will  not  disturb  the  findings,  unless  they  are  so 
manifestly  erroneous  as  to  demonstrate  some  oversight  or  mistake 
which  affects  the  substantial  rights  of  the  appellant.  The  appellant, 
however,  claims  there  is  no  such  conflict  in  the  evidence  as  to  war- 
rant the  application  of  the  rule  in  this  instance ;  that  the  disagree- 
ment is  not  as  to  the  physical  facts,  but  in  conclusions  drawn  from 
those  facts,  by  the  various  witnesses,  as  to  what  kind  of  mineral  or 
earthy  matter  constitutes  an  apex.  Whether  the  conflict  in  the  testi- 
mony of  the  witnesses  relates  to  their  conclusions  alone,  or  to  their 
conclusions  and  physical  facts,  or  whether  it  amounts  merely  to  a 
dift'erence  in  the  opinions  of  witnesses  as  to  meaning  of  words — 
the  meaning  of  "apex"  or  definition  of  "vein" — must,  so  far  as  pos- 
sible, be  ascertained  by  reference  to  the  evidence. 

Respecting  the  geological  features  of  the  country  in  which  the 
properties  are  located,  there  is  practically  no  conflict.    It  is  shown 


LODES   OR   \'EIXS    AXD   THEIR   APEXES.  5 1 

that  the  mines  are  found  in  a  lime  belt  which  covers  about  two  square 
miles,  and  is  the  great  producing  area  of  the  Tintic  district.  In  some 
places  the  limestone  beds  are  upturned,  large  areas  tilted  upon  edge, 
the  beds  dipping  nearly  vertically  down ;  while  in  other  places  they 
dip  at  lower  angles,  and  in  special  areas  the  dips  are  quite  uniform; 
and  again,  though,  it  seems,  not  frequently,  anticlinals  exist.  This 
limestone  is  surrounded  on  all  sides,  except  the  north,  bv  igneous 
rocks.  The  sedimentary  rocks  are  broken  up  and  fractured,  evidently 
the  result  of  igneous  intrusion.  The  limestone  carries  some  iron,  the 
different  forms  of  iron  oxide,  also  some  manganese,  and  in  places 
the  limestone  is  crushed,  crumbled,  and  brecciated.  How  these  beds 
of  organic  sediment  were  dislocated,  bent,  and  upturned  is  not  free 
from  doubt.  ]\laybe.  and  most  likely,  these  things  were  accomplished 
by  some  kind  of  volcanic  action,  which  igneous  intrusion  indicates, 
and  much  fracturing  may  have  been  caused  by  internal  shrinkage 
through  nature's  cooling  processes.  Whatever  the  cause,  the  dis- 
turbance is  apparent  from  the  evidence.  The  surface  of  the  limestone 
area,  wherever  exposed,  is  marked  with  innumerable  seams,  cracks, 
and  small  fissures  filled  with  carbonate  of  lime,  stained  more  or  less 
with  iron,  and  sometimes  manganese.  Quartz,  spar,  and  other  ma- 
terials, characteristic,  in  general,  of  mineral-bearing  limestone  areas, 
are  present,  and  in  places  die  surface  material  is  brecciated  and  re- 
cemented.  A  trace  of  mineral,  of  one  or  more  of  the  precious  metals, 
and,  in  places,  more  than  a  trace,  even  where  there  is  no  known 
vein,  seems  also  to  be  a  characteristic  of  that  line  belt.     *     *     * 

An  examination  of  the  evidence  discloses  the  fact  that  the  wit- 
nesses on  one  side  differ  widely  from  those  on  the  other  in  their 
statements  respecting  an  apex  at  the  surface  in  lot  38  north  of  the 
Cunningham  stope.  and  in  numerous  instances  as  to  facts  and  ap- 
pearances. Such  examination  shows  not  merely  a  conflict,  but  that 
the  question  whether  or  not  the  surface,  north  of  the  point  men- 
tioned, discloses  an  apex  of  a  vein  in  that  lot,  is  answered  in  the  neg- 
ative by  a  preponderance  of  the  proof  on  the  subject.  It  is  quite 
clear  tliat  the  findings  of  the  court  have  strong  support  in  the  testi- 
mony relating  to  the  surface. 

Do.  then,  the  underground  workings  and  explorations  reveal  the 
existence  of  a  vein,  which  has  an  apex  within  the  limits  of  lot  38, 
from  the  Silveropolis  south  end  line  extended  north  to  the  1,100- foot 
line  or  beyond,  and  which  on  its  dip  extends  to  and  embraces  the  ore 
bodies  in  dispute?  Or  does  the  vein,  which,  as  found  by  the  court 
and  admitted  by  the  parties,  crosses  the  south  end  line  of  lot  38  and 
continues  northerly,  within  the  limits  of  that  lot,  to  a  point  690  feet 
from  that  end  line,  continue  thence  northerly  parallel  with  the  Avest- 
ern  side  line  of  that  lot,  or  at  that  point  change  its  course  or  strike 
to  and  thence  continue  in  a  northwesterly  course  in  the  direction 
of  the  lines  U-T  and  T-S,  and  embrance  on  its  dip  those  ore 
bodies?     *     *     * 


52  PRELIMINARY   DEFINITIONS. 

In  addition  to  the  great  mass  of  testimony  of  both  parties  respect- 
ing the  underground  explorations  in  these  mines,  it  is  shown  that 
very  numerous  samples  were  taken  from  the  material  found  in  the 
drifts,  cross-cuts,  and  workings,  on  the  various  levels,  north  of  the 
Silveropolis  south  end  line  extended ;  but,  excepting  those  from  the 
vicinity  of  the  back  fissure  and  the  line  of  stoping  or  ore  channel,  the 
assays  in  evidence,  like  those  from  the  surface  samples,  indicate  no 
mineralization  not  common  generally  throughout  that  limestone  area. 
The  evidence  on  both  sides  relating  to  the  surface  and  to  the  under- 
ground explorations,  to  which  reference  has  been  made,  is  deemed 
to  fairly  show  the  conditions  and  geological  facts  of  those  portions 
of  the  properties  which  will  be  affected,  either  directly  or  conse- 
quentially by  this  decision,  and  also  of  those  portions,  not  affected  by 
the  result  hereof,  which  have  an  important  bearing  upon  what  is  in- 
volved. There  is  a  mass  of  testimony,  however,  relating  to  ground 
and  objects  of  some  importance,  which  has  been  given  due  considera- 
tion, but  to  which  specific  reference  is  impracticable. 

It  is  apparent  from  the  testimony  referred  to,  as  well  as  from  all 
the  evidence,  that  there  is,  to  say  the  least,  some  conflict,  not  only 
as  to  the  conclusions  of  the  witnesses  drawn  from  the  physical  facts, 
but  as  to  the  facts  themselves — as  to  what  things  actually  exist 
and  may  be  seen  upon  the  surface  and  in  the  mines.  *  *  * 
Nor  is  it  surprising  that  conflict  exists.  It  is  a  usual  feature  in 
such  a  suit — of  such  ordinary  occurrence,  and  so  often  of  such 
grave  character,  that  the  advisability  of  trying  a  mining  suit  be- 
fore a  jury  may  be  doubted.  Nor  can  it  be  attributed  wholly  to 
partizan  zeal  or  personal  interest.  The  high  character  of  the  wit- 
nesses, in  general,  in  this  case  forbids  this.  *  '•'  '"''  Every  one 
who  has  ever  attempted  to  trace,  either  by  surface  indications  or 
underground  workings,  or  both,  a  vein  through  an  eruptive  coun- 
try, or,  as  here,  through  sedimentary  beds,  broken  and  tilted,  with 
fractures  running  in  every  conceivable  direction,  wdiere  anticlines 
and  synclines  exist,  and  the  regular  dip  of  the  formation  in  places 
is  obliterated,  knows  that  the  investigation  is  not  only  laborious, 
of  slow  progress,  and  attended  with  innumerable  difficulties,  but 
is  liable,  in  the  end,  to  be  attended,  even  among  the  most  candid, 
with  an-tagonistic  theories,  erroneous  conclusions,  doubt,  and  uncer- 
tainty. This  is  strikingly  illustrated,  in  this  case,  in  the  fact  that  for 
more  than  a  quarter  of  a  century  the  Mammoth  mine  was  operated 
by  experienced  miners,  vast  amounts  of  ore  extracted  from  the  vein 
in  the  southerly  end  of  lot  38,  the  mountain  to  the  north  perforated 
with  expensive,  but  profitless  drifts,  along  and  through  the  dyke,  and 
cross-cuts  to  the  east  and  west,  and  yet  it  could  not  have  occurred 
to  the  operators,  from  the  indications  and  physical  facts  disclosed  by 
the  operations,  during  all  those  years,  that  the  vein  had,  between 
the  300  and  400  levels,  split  and  the  major  portion  passed  through 
the  dyke  on  its  dip  to  the  west ;  for,  so  far  as  shown  by  the  record, 


LODES    OR   VEINS    AND   THEIR   APEXES.  53 

no  attempt  was  ever  made  to  follow  that  alleged  western  portion  of 
the  vein  on  the  inclination,  or  to  trace  it  in  the  direction  of  the  ore 
bodies  in  dispute,  or  into  the  disputed  territory,  until  after  those 
ore  bodies  w-ere  struck  in  the  Grand  Central  ground  by  the  respondent 
in  1897,  although  the  j\Iammoth  shaft  had  been  sunk  hundreds  of 
feet  below  those  ore  bodies ;  and  even  now,  as  we  have  seen  from 
the  review  of  the  evidence,  with  drifts  and  cross-cuts,  on  different 
levels,  extended  and  driven,  the  surface  of  lot  38  dotted  with  open 
cuts  and  exposures,  as  appears  from  the  diagrams  and  testimony, 
all  for  the  purposes  of  this  trial,  not  only  the  appellant's  operators 
and  miners,  but  its  experts  appear  to  be  unable  to  trace  or  locate  the 
hanging  and  foot  walls  of  the  vein,  either  at  the  surface  or  at  depth. 
Under  such  circumstances,  it  need  not  be  marveled  that  the  wit- 
nesses, looking  at  the  same  things  and  same  characteristic  features, 
did  not  see  them  alike,  or  draw  the  same  conclusions  from  them. 

Suppose,  however,  notwithstanding  there  is  a  conflict  in  the  evi- 
dence, we  assume,  without  deciding,  that  such  conflict  relates,  as  is 
insisted  by  the  appellant,  only  to  the  opinions  of  witnesses  as  to 
what  the  physical  facts  show,  and  that  the  rule,  invoked  by  the  re- 
spondent, should  not,  under  the  circumstances,  be  enforced,  the  ques- 
tion then  is,  was  the  court  justified,  under  tlie  evidence,  in  holding 
that  the  vein  departed,  at  the  point  designated  in  the  findings,  from 
lot  38  on  a  northwesterly  course,  and  did  not  return  to  that  claim 
north  of  that  point?  In  determining  this  question  it  becomes  im- 
portant to  consider  the  nature  and  principal  characteristics  of  this 
vein,  and,  in  connection  therewith,  some  prominent  geological  fea- 
tures disclosed  by  the  evidence.  Before  doing  this,  it  will  be  well  to 
notice  that  the  appellant  contends  that  the  vein  consists  of  a  series 
of  parallel  fissures  in  limestone,  the  ore  being  mixed  up  with  broken, 
shattered  rock;  that  the  vein  is  so  constituted  both  at  the  surface 
and  at  depth ;  and  that  the  limits  of  the  vein  are  coextensive  with 
the  limits  of  the  broken,  crushed,  seamed,  and  fissured  limestone. 
Upon  this  theory  it  is  insisted  that,  while  the  broken,  stained,  and 
shattered  material  carries  little  of  the  valuable  metals  on  and  near 
the  surface,  it  is  vein  matter  and  evidence  of  vein,  and  that  the  court 
erred  in  charging  the  jury  that  the  apex  of  a  fissure  vein  is  the  high- 
est point  at  which  vein  matter  is  found,  and  "by  vein  matter  in  this 
connection  I  mean  rock  or  earth  containing  mineral  in  quantities  ap- 
preciablv  greater  than  is  found  in  the  general  mass  of  the  mountain." 
Whether  or  not  this  instruction  is  erroneous  we  need  not  stop  to 
determine.  This  being  a  cause  in  equity,  the  verdict  of  the  jury  upon 
the  controverted  questions  of  fact  submitted  to  it  was  but  advisory 
to  the  court,  and  therefore  error  could  not  be  predicated  upon  in- 
structions given  or  refused. '  The  judge  had  the  undoubted  right  to 
disregard  the  verdict  or  special  findings,  or  consider  them  in  whole 
or  in  part,  or  determine  for  himself  the  special  issues  submitted,  as 
he  chose.     '^'     *     * 


54 


PRELIMINARY   DEFINITIONS. 


In  determining  the  question  before  us,  however,  whether  the  find- 
ing of  the  court  was  warranted  by  the  evidence,  it  is  important  to 
consider  what  constitutes  a  vein  or  lode.  It  will  hardly  be  contended 
that,  merely  because  rock  is  broken,  crushed,  shattered,  and  even 
fissured,  it  constitutes  a  vein  within  the  meaning  of  the  laws  of  Con- 
gress. All  miners  of  any  experience,  as  well  as  men  of  scientific  re- 
search, know  that  such  occurrences  may  be  found  in  the  most  barren 
country.  Something  more  is  necessary  to  dignify  that  kind  of  ma- 
terial with  the  character  of  a  vein  or  lode.  The  material,  whatever 
else  may  be  its  condition,  must  be  metalliferous — must  contain  some 
kind  of"  mineral  of  value,  so  as  to  distinguish  it  from  the  country 
rock;  and  especially  is  this  true  where  there  are  no  well-defined 
walls.  This  is  so  in  the  case  of  a  contact,  as  well  as  of  a  fissure. 
Where  it  is  barren  for  a  considerable  distance,  barren  in  its  con- 
tinuity, it  is  deprived  of  the  character  of  a  vein.  But  wherever  a 
vein  has  at  any  time  existed,  with  continuity  of  ore  which  by  some 
subsequent  convulsion  or  volcanic  action  may  have  been  interrupted, 
the  character  of  the  vein  or  deposit  is  not  changed.  Stevens  v.  Wil- 
liams, I  Mor.  Min.  Rep.  557.  Fissure  veins  have  many  characteris- 
tics. They  are  the  fillings  of  fissures  or  openings  of  the  country  rock, 
of  all  kinds  of  rock  of  all  ages,  contain  dififerent  kinds  of  material, 
in  some  respects  corresponding  with,  in  others  differing  from,  the 
country  rock ;  the  most  common  material  being  quartz.  The  fissures 
have  selvages  and  slickensides,  and  the  gangue  material  is  generally 
easily  distinguished  from  the  country  rock.  Fissure  veins  are  simple 
or  banded,  according  to  structure  as  to  minerals.  Some  continue  in 
the  same  direction;  others  are  irregular  and  change  their  courses. 
Some  have  a  continuity  of  ore,  while  others  are  barren  in  places,  and 
still  others  are  faulted.  The  appellant,  as  we  have  seen  from  the  testi- 
mony, claims  the  vein  in  dispute  is  continuous  in  the  same  direction ; 
the  respondent,  that  it  changes  its  course  and  is  faulted.  The  books 
tell  us  that  vein-making  fissures  have  been  formed,  by  contraction 
on  drying,  as  in  argillaceous  stratum,  or  on  cooling  from  fusion,  or 
from  heat  attending  metamorphism ;  by  subterranean  movements, 
pre-eminently  those  which  have  attended  mountain  making ;  by  the 
disruptive  or  expansive  action  of  vapors  resulting  from  volcanic  ac- 
tion ;  and  by  corroding  vapors,  or  by  solutions  from  the  deep,  which 
sometimes  enlarge  the  fissure,  especially  where  the  rock  is  limestone. 
Dana,  Manual  of  Geology.  Fissures  formed  through  volcanic  action, 
and  enlarged  by  corroding  solutions  and  vapors,  are  deep-seated, 
and  frequently  contain  large  cavities.  That  the  vein  in  question  was 
so  formed  by  such  action  and  solutions  or  vapors  appears  from  the 
testimony,  as  we  have  already  observed.  It  will  be  perceived  that  to 
define  the  word  "vein,"  that  represents  a  thing  of  so  many  and  varied 
characteristics,  is  a  matter  attended  with  difficulty.  Especially  is  this 
true  if  such  definition,  in  view  of  the  statutes  which  deal  with  min- 


LODES   OR   VEINS    AND   THEIR   APEXES,  55 

eral-bearing  veins  only,  is  to  convey  an  accurate  idea  of  the  thing 
itself. 

Mr.  Justice  Field,  in  the  Eureka  Case,  4  Sawy.  302,  Fed.  Cas.  No. 
4,548,  said :  "It  is  difficult  to  give  any  definition  of  the  term,  as  un- 
derstood and  used  in  the  acts  of  Congress,  which  will  not  be  sub- 
ject to  criticism.  A  fissure  in  the  earth's  crust,  an  opening  in  its 
rocks  and  strata  made  by  some  force  of  nature,  in  which  the  mineral 
is  deposited,  would  seem  to  be  essential  to  the  definition  of  a  lode, 
in  the  judgment  of  geologists.  But  to  the  practical  miner,  the  fissure 
and  its  walls  are  only  of  importance  as  indicating  the  boundaries 
within  which  he  may  look  for  and  reasonably  expect  to  find  the  ore 
he  seeks.  A  continuous  body  of  mineralized  rock,  lying  within  any 
other  well-defined  boundaries  on  the  earth's  surface  and  under  it, 
would  equally  constitute,  in  his  eyes,  a  lode.  We  are  of  opinion, 
therefore,  that  the  term  as  used  in  the  acts  of  Congress  is  applicable  to 
any  zone  or  belt  of  mineralized  rock  lying  within  boundaries  clearly 
separating  it  from  the  neighboring  rock."  In  Iron  Silver  Min.  Co. 
V.  Cheesman,  116  U.  S.  529,  6  Sup.  Ct.  481,  29  L.  Ed.  712,  the 
Supreme  Court  of  the  United  States  adopted  a  definition  of  vein 
given  by  Mr.  Justice  Hallett  in  the  same  case,  as  follows :  "To  deter- 
mine whether  a  lode  or  vein  exists,  it  is  necessary  to  define  those 
terms ;  and,  as  to  that,  it  is  enough  to  say  that  a  lode  or  vein  is  a 
body  of  mineral,  or  mineral-bearing  rock,  within  defined  boundaries 
in  the  general  mass  of  the  mountain.  In  this  definition  the  elements 
are  the  body  of  mineral  or  mineral-bearing  rock  and  the  boundaries. 
With  either  of  these  things  well  established,  very  slight  evidence 
may  be  accepted  as  to  the  existence  of  the  other.  A  body  of  mineral 
or  mineral-bearing  rock  in  the  general  mass  of  the  mountain,  so 
far  as  it  may  continue  unbroken  and  without  interruption,  may  be 
regarded  as  a  lode,  whatever  the  boundaries  may  be.  In  the  exist- 
ence of  .such  body,  and  to  the  extent  of  it,  boundaries  are  implied. 
On  the  other  hand,  with  well-defined  boundaries,  very  slight  evidence 
of  ore  within  such  boundaries  will  prove  the  existence  of  a  lode. 
Such  boundaries  constitute  a  fissure,  and  if  in  such  fissure  ore  is 
found,  although  at  considerable  intervals  and  in  small  quantities,  it 
is  called  a  lode  or  vein."  So,  in  United  States  v.  Iron  Silver  Min. 
Co.,  128  U.  S.  673,  9  Sup.  Ct.  195,  32  L.  Ed.  571,  Mr.  Justice  Field 
said :  "By  'veins  or  lodes,'  as  here  used,  are  meant  lines  or  aggrega- 
tions of  metal  embedded  in  quartz  or  other  rock  in  place.  The  terms 
are  found  together  in  the  statutes,  and  both  are  intended  to  indicate 
the  presence  of  mineral  in  rock."  Cheesman  v.  Shreeve  (C.  C.)  40 
Fed.  787;  Hyman  v.  Wheeler  (C.  C.)  29  Fed.  347;  Leadville  Min. 
Co.  V.  Fitzgerald,  4  Mor.  Min.  Rep.  380. 

In  all  these  definitions,  as  will  be  noticed,  the  essential  elements 
of  a  vein  are  mineral  or  mineral-bearing  rock  and  boundaries,  and 
no  doubt  that,  when  one  of  these  elements  is  well  established,  "very 
sHght  evidence  may  be  accepted  as  to  the  existence  of  the  other." 


56  PRELIMINARY   DEFINITIONS. 

It  would  seem,  therefore,  that  where  one  claims  extralateral  rights 
under  the  acts  of  Congress,  because  of  a  vein  existing  and  apexing 
in  his  ground,  but  which  has  no  well-defined  boundaries,  he,  when 
his  claim  is  controverted,  must,  in  order  to  exercise  such  rights, 
show  a  ledge  or  body  of  mineral  or  mineral-bearing  rock  of  such 
value  as  will  distinguish  it  from  the  country  rock,  or  from  the  gen- 
eral mass  of  the  mountain.  The  material  must  in  texture  and  value 
be  such  as  to  show  the  existence  of  a  vein,  and  the  mere  fact,  as  has 
been  stated,  or  proof  of  the  fact,  that  the  rock  is  broken,  shattered, 
and  fissured,  and  mixed  with  calcareous  substance,  though  it  may 
show  a  conglomerate  mass,  does  not  establish,  in  the  sense  of  the 
statutes,  a  vein.  When,  however,  the  walls  or  boundaries  are  well- 
defined,  the  vein  differentiated  from  the  adjacent  country,  and  the 
kind  of  material  mentioned  constitutes  the  filling,  evidence  of  slight 
value  in  mineral  will,  it  seems,  be  sufficient. 

It  is  insisted  for  the  appellant,  however,  that  "a  lode,  within  the 
meaning  of  the  statute,  is  whatever  the  miner  can  follow  with  a 
reasonable  expectation  of  finding  ore" ;  that,  though  he  sees  no  ore, 
yet,  if  he  sees  gangue  and  vein  matter,  he  discovers  the  lode ; 
and  that  whatever  material  would  be  sufiQcient  to  render  valid  a  loca- 
tion thereon  would  be  sufficient  evidence  of  apex  to  justify  one  in 
following  therefrom  downwards,  beyond  the  side  lines  of  the  loca- 
tion, in  the  same  kind  of  material,  to  and  beneath  the  surface  of  his 
neighbor's  property.  We  do  not  thus  interpret  the  law.  What  may 
constitute  a  sufficient  discovery  to  warrant  a  location  of  a  claim 
may  be  wholly  inadequate  to  justify  the  locator  in  claiming  or  exer- 
cising any  rights  reserved  by  the  statutes.  What  constitutes  a  dis- 
covery that  will  validate  a  location  is  a  very  different  thing  from 
what  constitutes  an  apex,  to  which  attaches  the  statutory  right  to 
invade  the  possession  of  and  appropriate  the  property  which  is  pre- 
sumed to  belong  to  an  adjoining  owner.  The  question  of  a  sufficient 
discovery  of  a  vein,  or  of  the  validity  of  a  notice  of  location,  upon 
which  the  cases  cited  by  the  appellant  on  this  point  are  authority,  is 
substantially  different  from  one  relating  to  the  continuity  of  a  vein 
on  its  dip  from  the  apex,  and  which  tests  the  rights  of  the  undisputed 
owner  of  the  surface  to  what  lies  underneath  and  within  his  own 
boundaries.  It  is  the  object  and  policy  of  the  law  to  encourage  the 
prospector  and  miner  in  their  efforts  to  discover  the  hidden  treasures 
of  the  mountains,  and  therefore,  as  between  conflicting  lode  claim- 
ants, the  law  is  liberally  construed  in  favor  of  the  senior  location ; 
but  where  one  claims  what  prima  facie  belongs  to  his  neighbor, 
because  of  an  apex  in  the  claimant's  location,  a  more  rigid  rule  of 
construction  against  the  claimant  prevails,  and,  as  we  have  already 
observed,  he  has  the  burden  to  show,  not  merely  that  the  vein  on  its 
dip  may  include  the  ore  bodies  in  the  adjoining  ground,  but  that  in 
fact  it  does  so  include  them.  Until  he  establishes  such  fact  beyond 
reasonable  controversy,  he  has  no  rights  outside  his  side  lines  in 


LODES    OR   VEINS   AND   THEIR   APEXES.  57 

another's  ground.  "In  determining  what  constitutes  such  a  dis- 
covery as  will  satisfy  the  law  and  form  the  basis  of  a  valid  mining 
location,  we  find,  as  in  the  case  of  the  definition  of  the  terms  'lode' 
or  'vein,'  that  the  tendency  of  the  courts  is  toward  marked  liberality 
of  construction  where  a  question  arises  between  two  miners  who 
have  located  claims  upon  the  same  lode  or  within  the  same  surface 
boundaries,  and  toward  strict  rules  of  interpretation  when  the  miner 
asserts  rights  in  property  which  either  prima  facie  belongs  to  some 
one  else  or  is  claimed  under  laws  other  than  those  providing  for  the 
disposition  of  mineral  lands,  in  which  latter  case  the  relative  value 
of  the  tract  is  a  matter  directly  in  issue.  The  reason  for  this  is 
obvious.  In  the  case  where  two  miners  assert  rights  based  upon 
separate  alleged  discoveries  on  the  same  vein,  neither  is  hampered 
with  presumptions  arising  from  a  prior  grant  of  the  tract,  to  over- 
come which  strict  proof  is  required.  In  applying  a  liberal  rule  to  one 
class  of  cases  and  a  rigid  rule  to  another,  the  courts  justify  their 
action  upon  the  theory  that  the  object  of  each  section  of  the  Revised 
Statutes,  and  the  whole  policy  of  the  entire  law,  should  not  be  over- 
looked." I  Lindley  on  Mines  (2d  Ed.)  §  336.  The  Supreme  Court 
of  Montana,  in  Fitzgerald  v.  Clark,  17  Mont.  100,  42  Pac.  273,  30 
L.  R.  A.  803,  52  Am.  St.  Rep.  665,  observed :  "When  it  is  said 
that  a  location  may.be  sustained_by  the  discovery  of  mineral  deposits 
of  such  value  as  to  at  least  justify  the  exploration  of  the  lode  in  the 
expectation  of  finding  ore  sufficiently  valuable  to  work,  it  is  a  very 
dififerent  question  from  telling  a  jury  that  the  geological  fact  of 
the  continuity  of  the  vein  to  a  certain  point  may  be  determined  by 
j  what  a  practical  miner  might  do  in  looking  for  some  hoped-for  con- 
■fmuitv.  ?Ji-con  v.  :Mont.  Cent.  Ry.  Co.,  j-]  Fed.  249,  23  C.  C.  A. 
156;  Bonner  V.  Meikle  (C.  C.)  82  Fed.  697;  United  States  v.  Iron 
Silver  Min.  Co.,  128  U.  S.  673,  9  Sup.  Ct.  195,  32  L.  Ed.  571. 

Reverting  to  the  characteristic  of  a  vein  or  lode,  appearing  from 
the  definitions  above  quoted,  that  its  filling  must  consist  of  a  body 
of  mineral  or  mineral-bearing  rock,  what  value  such  material  should 
contain  is  a  matter  not  devoid  of  difficulty,  and  no  standard  of  value 
applicable  to  all  such  cases  has  yet,  and  probably  never  will  be,  de- 
vised. It  must  necessarily  depend  upon  the  characteristics  of  the 
district  or  country  in  which  the  vein  or  lode,  in  any  particular  in- 
stance claimed  to  exist,  is  located,  and  upon  the  character,  as  to 
boundaries,  of  the  vein  itself.  If  the  country  rock,  or  the  general 
mass  of  the  mountain  outside  of  the  limits  of  the  vein,  is  wholly 
barren,  slight  values  of  the  vein  material,  as  before  stated,  would 
seem  to  satisfy  the  law ;  but  if,  on  the  other  hand,  the  rock  of  the 
district  generally  carries  values,  then  undoubtedly  the  values  in  the 
vein  material,  where  the  boundaries  of  the  vein  are  not  well  or  not  at 
all  defined,  either  on  the  surface  or  at  depth,  should  be  in  excess  of 
those  of  the  country  rock,  else  there  can  be  no  line  of  demarkation, 
nor,  where  the  rock  is  generally  broken,  shattered,  and  fissured,  any- 


58  PRELIMINARY   DEFINITIONS. 

thing  to  separate  it  from  the  adjacent  country.  Values,  therefore, 
of  the  fining  of  a  vein,  must  be  considered  with  special  reference  to 
the  district  where  the  vein  or  lode  is  found.  It  is  likewise  as  to  a 
definition  of  a  vein  or  lode.  In  Migeon  v.  Montana  Cent.  Ry.  Co., 
yy  Fed  249,  23  C.  C.  A.  156,  it  was  said:  ''The  definition  of  a  lode 
must  always  have  special  reference  to  the  formation  and  peculiar 
characteristics  of  the  particular  district  in  which  the  lode  or  vein 
is  found."  Bonner  v.  Meikle,  supra.  Now,  weighing  and  consider- 
ing the  evidence,  which  we  have  already  examined,  in  the  light  of 
the  foregoing  definitions,  adopted  and  announced  by  the  most  emi- 
nent tribunal  in  this  country,  and  bearing  in  mind  the  characteristics 
of  a  vein  to  which  we  have  adverted,  the  conclusion  seems  inevitable 
that  no  vein  that  will  satisfy  the  demands  of  the  law  has  been  shown 
to  exist  north  of  the  north  end  of  the  Cunningham  stope,  or  north 
of  the  Silveropolis  south  end  line  extended,  within  the  limits  of 
lot  38,  which  from  its  apex  on  its  dip  extends  to  and  includes  the 
ore  bodies  in  question. 

Looking  again  at  the  surface  of  lot  38,  through  the  evidence,  we 
see,  it  is  true,  outside  the  dykes,  broken,  shattered,  and  fractured 
rocks,  seams  filled  with  calcite,  or  calcerous  matter,  in  places  brec- 
ciated  material,  and  stains  of  dififerent  oxides  of  iron  and  occasionally 
of  manganese ;  but  what  we  conceive  to  be  a  decided  preponderance 
of  the  evidence  shows  that  these  same  conditions  of  the  rock  and 
earth  appear  in  the  same  manner  and  to  about  the  same  extent 
throughout  the  limestone  area  north  of  that  end  line,  except  in  the 
vicinity  of  the  line  of  stoping  and  of  the  dykes.  The  evidence  re- 
specting the  surface,  considered  all  together,  conveys  the  idea  that 
generally  the  portion  of  the  country  referred  to,  including  lot  38 
north  of  the  Cunningham  stope,  presents  substantially  the  same  ap- 
pearance, except  in  the  vicinity  of  the  dykes,  the  back  fissure,  and 
ore  bodies,  and  that  wherever  the  rock  is  exposed,  by  erosion  or 
otherwise,  its  broken,  fractured,  and  seamed  condition  is  visible.  So, 
as  we  have  seen  from  the  review  of  the  evidence,  the  same  similarity 
of  appearances  and  conditions  of  rock  and  material  exists  beneath  the 
surface  on  the  various  levels  in  both  mines.  In  fact,  we  feel  war- 
ranted in  the  conclusion  that  it  is  established  by  the  overwhelming 
weight  of  the  evidence  that  the  easterly  portion  of  the  Condon  tun- 
nel ;  the  northerly  portion  of  the  Finn  tunnel  level,  including  both 
of  its  westerly  branches ;  the  Grand  Central  200  level,  from  its 
easterly  face  back  to  station  T ;  the  northerly  portion  of  the  Mam- 
moth tunnel  level,  including  the  three  westerly  or  northwesterly 
branches  and  the  Dago  raises ;  the  branch  westerly  from  station  106 
on  the  ^Mammoth  400,  and  the  Grand  Central  400  level  from  its  east- 
erly face  back  to  the  winze ;  the  workings  on  the  500  level  from  about 
station  584  north ;  the  northerly  workings  on  the  Mammoth  600 
level,  including  the  east  and  west  cross-cut  from  station  643,  and  the 
new  cross-cut  running  westerly  from  station   15  into  Silveropolis 


LODES    OR   VEINS   AND   THEIR   APEXES.  59 

ground ;  the  northerly  portion  of  the  Mammoth  700  level,  including 
the  long  connecting  cross-cut,  and  the  Grand  Central  700  from  its 
easterly  face  back  to  station  22 ;  and  the  Tranter  drift  and  northerly 
workings  on  the  Mammoth  800  level — are  all  outside  of  any  vein 
such  as  the  law  contemplates,  but  are  in  country  rock,  except  in- 
stances where  such  workings  run  along  or  cross  the  dykes  and  are  in 
dyke  material.  According  to  the  decided  preponderance  of  the  evi- 
dence, therefore,  even  tliough  whatever  conflict  therein  exists  be 
regarded  as  relating  to  the  opinion  of  witnesses  merely,  the  section 
of  country  lying  west  of  the  west  side  line,  or,  rather,  west  of  the 
east  side  line,  of  lot  38,  and  north  of  the  ore  bodies  cut  by  the  plane 
H-H,  or  lying  along  a  plane  drawn  vertically  down  through  the 
line  U-T,  or  north  of  the  plane  E-E  and  east  of  the  stopping 
along  and  in  the  direction  of  the  line  T-S,  is  practically  barren  of 
mineral,  although  the  rock,  in  general,  is  much  broken,  shattered, 
and  fractured,  with  fissures  running  in  all  directions.  The  same  bar- 
ren condition  of  that  section  of  ground  also  appears  from  the  assays 
of  the  samples  taken  from  the  surface  and  the  workings  at  depth. 

It  is  true,  the  appellant  claims  the  open  cuts  and  the  workings 
at  depth  are  substantially  all  in  vein  material ;  but,  as  we  have  seen, 
in  the  judgment  of  the  appellant's  witnesses,  broken,  shattered,  and 
fissured  limestone,  or  crushed  and  brecciated  matter,  no  matter  how 
barren,  constitutes  vein  material,  although  such  matter  and  conditions 
exist,  without  any  defined  boundaries,  many  hundreds  of  feet  to  the 
east  and  west  of  lot  38,  in  fact  throughout  that  limestone  area,  so 
far  as  it  was  examined  by  witnesses,  and  with  no  more  mineraliza- 
tion than  is  contained  in  the  general  mass  of  the  mountain  for  more 
than  1,000  feet  to  the  east  and  west,  or  through  the  limestone  belt. 
Is  it  not  difficult  to  perceive  how  such  material,  in  the  absence  of 
both  a  hanging  and  foot  wall,  can  be  regarded  as  a  vein?  Are  not 
the  essential  characteristics  of  a  vein  or  lode  absolutely  wanting? 
In  the  absence  of  the  very  elements  which  constitute  a  vein,  as 
defined  bv  the  highest  court  of  our  country,  how  can  we  hold  a  vein 
exists  ?  There  appears  to  be  no  mineralization  in  excess  of  that  con- 
tained in  the  country  rock;  the  existence  of  no  body  of  mineral  or 
mineral-bearing  rock  in  any  opening  or  fissure  established.  No  wit- 
ness, save  ]\Ir.  Akers,  attempted  to  locate  the  foot  wall  of  the  vein, 
and  he,  as  we  have  noticed,  at  but  one  place,  about  20  feet  west  of 
station  643  on  the  600  level,  in  judgment  only;  for  his  evidence  is 
not  direct  or  satisfactory  as  to  the  fact.  Several  witnesses  at  a  few 
points  attempted  to  fix  the  hanging  wall ;  but  in  each  instance  the 
testimony  respecting  it  seems  to  point  to  an  arbitrary  location,  for 
the  fracturing,  which  they  claim  to  be  the  limits  of  the  vein,  extends 
far  to  the  west  of  the  places  pointed  to  as  the  hanging  wall.  We 
doubt  if  the  most  careful  scrutiny  of  a  scientific  expert  on  mines 
could,  from  the  description  of  the  material  in  evidence,  locate  what, 
in  the  judgment  of  those  witnesses,  is  the  hanging  wall.    It  seems  to 


6o  PRELIMINARY   DEFINITIONS. 

exist  in  opinion  only.  Nor  does  the  fracturing  stop  at  the  Grand 
Central  ore  bodies.  It  is  shown  in  evidence  to  extend,  at  least,  as  far 
west  as  the  Grand  Central  shaft,  more  than  i,ooo  feet  beyond  where 
that  wall  was  attempted  to  be  located.  No  court  would  be  justified 
in  holding  that,  in  such  a  formation  as  this,  the  limits  of  fracturing 
constitute  the  limits  of  the  vein.  Such  a  holding  would  be  alike 
unreasonable  and  impracticable.  It  would  convert  practically  all  that 
whole  limestone  area  into  a  vein — a  vein  thousands  of  feet  wide, 
the  like  of  which,  we  venture  to  say,  no  geologist  or  miner  has  ever 
known.  Even  if  there  be  found  an  occasional  vugg  or  fragment  of 
ore,  yet,  where  it  is  disconnected  from  any  ore  body,  and  so  inter- 
mingled with  and  surrounded  by  country  rock  that  it  cannot  be  re- 
garded as  continuous,  it  does  not  mark  the  line  of  a  vein  or  lode, 
within  the  meaning  of  the  law.  Bunker  Hill  &  S.  M.  &  C.  Co.  v. 
E.  St.  Ida.  M.  &  D.  Co.  (C.  C.)  134  Fed.  268;  Cheesman  v.  Shreeve 
(C.  C.)  40  Fed.  787;  Iron  &  Silver  Min.  Co.  v.  Cheesman,  116  U.  S. 
529,  6  Sup.  Ct.  481,  29  L.  Ed.  712. 

Upon  very  careful  scrutiny  of  the  evidence,  we  are  of  the  opinion 
that  the  court  did  not  err  in  rejecting  the  theory  that  the  limits  of 
fracturing  constituted  the  limits  of  the  vein,  nor  in  holding  that  the 
ivein  existing  in  the  south  end  of  lot  38  did  not  continue  in  that  lot 
north  of  the  north  end  of  the  Cunningham  stope.  Where,  then,  and 
in  what  direction,  does  the  vein  proceed  on  its  strike  from  that  stope, 
and  where  are  its  boundaries  or  Hmits  ?  That  the  Mammoth  vein  was 
formed  by  replacement — by  replacing  the  limestone,  molecule  for 
molecule,  with  mineral  through  the  thermal  and  chemical  waters,  or 
corroding  vapors  or  solutions,  ascending  from  the  deep  through  the 
fissure  or  series  of  fissures  constituting  the  lode — and  that,  where  the 
ore  appears,  the  fissure  or  opening  was  widened  and  large  cavities  cre- 
ated and  filled  with  ore,  through  metasomatic  action,  appears  mani- 
fest from  the  evidence.  The  acid  and  corrosive  solutions  acting  upon 
the  limestone  corroded  it  or  dissolved  it,  and  the  limestone  thus  pre- 
cipitated the  ore  by  depositing  it  out  of  the  solutions.  Thus,  evidently, 
the  ore  bodies  were  built  up  particle  by  particle  by  dissolving  the 
limestone  and  precipitating  the  ore,  or  by  replacing  the  limestone 
with  ore.  It  appears  in  evidence  that  great  masses  of  ore  are  found 
in  which  the  original  bedding  planes  can  yet  be  traced,  these  planes 
not  having  been  obliterated  by  the  metasomatic  change.  These 
things  are  not  denied  by  the  witnesses  for  the  appellant,  but,  on  the 
contrary,  its  leading  witness  admits  that  there  are  evidences  of 
metasomatic  change  in  the  Mammoth  vein,  although  he  says  he  has 
heard  or  read  of  no  mines  in  limestone  where  the  process  of  replace- 
ment was  so  limited  as  in  these  mines.  It  also  appears  in  evidence, 
as  has  been  observed,  that  in  running  from  an  ore  body  into  lime- 
stone anywhere  barren  rock  will  be  encountered  within  a  few  inches 
or  a  few  feet  of  the  ore.  In  other  words,  the  limit  of  the  ore  every- 
where is  practically  barren  rock  or  barren  material.     This  clearly 


LODES    OR   VEINS   AND   THEIR   APEXES.  6l 

appears  from  the  testimony  of  Col.  Wall  and  of  Mr.  Loose.  Ac- 
cording to  the  decided  weight  of  the  evidence,  the  mineralization 
practically  ceases  everywhere  within  a  short  distance  from  the  ore 
bodies.  The  vein  and  ore  bodies,  going  northerly  from  the  Mam- 
moth shaft,  rarely  reach  a  width  of  loo  feet.  This  condition  of 
things  exists  all  along  the  fissure  northerly  through  the  great  ore 
bodies  to  the  Cunningham  stope,  thence  through  the  ore  bodies  in 
the  direction  of  the  lines  U-T  and  T-S.  It  is  the  same  on  each 
side  of  where  the  vein  passes  through  the  dyke,  and  the  country  in 
the  vicinity  of  the  dykes,  where  the  vein  penetrates  them,  is  very 
much  crushed  and  shattered.  The  direction  of  the  ore  channel  and 
ore  bodies  will  readily  be  observed  from  the  diagrams.  It  will  be 
noticed  that  the  ore  channel,  although  irregular  and  changing  its 
course  at  the  Cunningham  stope  and  at  the  Bradley  Consort  line, 
is  continuous  clear  through  from  the  Mammoth  shaft  to  north  of 
the  Butterfly  stope,  a  distance  of  more  than  2,000  feet,  and  more  than 
1,400  feet,  as  we  have  seen  before,  in  the  northwesterly  direction 
from  the  Cunningham  stope,  and  doubtless  the  course  of  a  vein  lon- 
gitudinally, as  it  passes  through  the  country,  is  its  strike.  That  the 
vein  has  well-defined  boundaries  and  strike  from  the  south  end  line  of 
lot  38  to  the  north  end  of  that  stope,  a  distance  of  about  700  feet, 
is  not  controverted ;  but  from  there  on  in  the  northwesterly  direction, 
although  the  same  conditions  continue  to  exist,  the  appellant  insists 
that  the  ore  bodies  are  on  the  dip,  and  not  on  the  strike,  of  the  vein. 
But  why  not  on  the  strike?  What  facts  are  there  established  by  the 
evidence  that  show  the  ore  bodies  on  the  dip  and  not  on  the  strike? 
We  must  confess  our  inability,  upon  most  careful  scrutiny  of  the  mass 
of  evidence,  to  find  anything  to  warrant  us  in  sustaining  the  conten- 
tion of  the  appellant.  The  character  of  the  fissure,  the  processes  that 
evidently  controlled  in  the  deposition  of  the  ore,  the  characteristics  of 
the  vein  where  it  is  not  in  dispute  and  those  where  it  is  in  dispute,  in- 
cluding the  continuity  of  the  ore  in  the  line  of  the  channel,  the  barren- 
ness of  the  rock  as  you  recede  from  the  ore,  the  dip  of  the  vein  and  of 
the  back  fissure,  yet  to  be  adverted  to,  the  similarity  of  the  earth  and 
rock  throughout  the  limestone  area  outside  of  the  ore  bodies  and 
dykes,  some  prominent  geological  features  yet  to  be  noticed,  all  mili- 
tate against  the  contention  and  point  unerringly,  it  seems,  to  the  line 
marked  by  the  ore  channel  as  the  location  and  strike  of  the  vein,  and 
to  the  limits  of  the  deposition  of  ore  as  the  limits  of  the  vein. 

Reverting  to  the  geological  features,  just  mentioned  and  before 
referred  to,  we  will  first  notice  the  dip  of  the  vein  and  back  fissure, 
and  here  the  appellant  in  its  contention  encounters  a  serious  obstacle ; 
for  in  vain  will  the  record  be  searched  for  a  degree  of  inclination 
that  would  carry  a  vein  from  lot  38  to  the  ore  bodies  in  dispute.  The 
vein  and  ore  bodies,  wherever  explored,  occupy  almost  a  vertical 
position.  As  we  have  shown  by  a  review  of  the  evidence,  at  the 
Mammoth  shaft  the  vein  and  ore  go  to  the  deep  so  nearly  vertical 


^ 


^     t^         02  PRELIMINARY   DEFINITIONS. 

^%^     that  on  the  1,900  level,  a  distance  of  1,800  feet,  the  westing  is  but  100 

'  .  J->   feet,  and  the  dip  over  86°  from  the  horizontal.    The  dip  of  the  back 

fissure  is  shown  to  be  about  the  same  from  the  Finn  tunnel  to  the  800 

level,  a  distance  of  688  feet ;  the  Finn  tunnel  being  92  feet,  and  the 

*^,'       800  level  135,  west  of  the  west  side  line  of  lot  38,  making  a  westing 

of  but  43  feet  and  a  dip  of  86>^°.     So  we  have  seen  that,  on  the 

Grand   Central   side,  from  top   of  the  winze  on  the  400  down  to 

w^^        the  1,000  level,  the  dip  is  82°  from  the  horizontal,  and  that  along  the 

•^         line  U-T,   where  the  ore  bodies  in  dispute  occur,  the   dip  is  75° 

I  7  An'-  to  80°  from  the  horizontal.    Now,  considering  the  dip  of  the  veins, 

jpj-i  as  thus  shown  in  both  mines,  in  connection  with  the  long  distance, 

^         apparent  from  the  surface  maps,  intervening  between  the  west  side 

line  of  lot  38  and  the  ore  bodies  and  vein  on  the  Grand  Central  side, 

^  ^t^'      is  it  not  clear,  without  further  demonstration,  that  no  dip  is  shown 

vci-        that  could  carry  a  vein  from  lot  38  to  the  controverted  ore  bodies 

^^~^         and  vein  in  the  Grand  Central  mine?     Such  certainly  seems  to  be 

the  fact  under  the  proof.     =i=     *     * 
'■  «-^  ■  Not  unmindful  of  the  grave  responsibility  that  attaches  to  the 

fit^iK^     final  decision  of  a  case  of  such  magnitude  and  importance,  we  have 
examined  with  commensurate  caution  the  voluminous  mass  of  evi- 
dence, in  extended  and  deliberate  discussion  have  announced  our 
'  'r-       views  upon  the  various  questions  involved,  and  have  come  to  the  in- 
'^Ucfi,  y  ^'^'it^ble  conclusion  that  the  appellant  has  shown  no  right  of  recovery 

■  under  its  counterclaim  and  no  right  to  amend  its  pleadings. 
.  1/e^'ft..     The  judgment  must  therefore  be  affirmed.     It  is  affirmed,  with 
-^   .      costs. 
?D/  

_   I      iSection  2. — Placers. 

/vx  Vi^;  '  FEDERAL  STATUTE. 

?,c^'  d;       Sec.  2329.    Claims  usually  called  "placers,"  including  all  forms  of  deposit, 
^  excepting  veins  of  quartz,  or  other  rock  in  place,  shall  he  subject  to  entry  and 

v^         patent,  under  like  circumstances  and  conditions,  and  upon  similar  proceedings, 
L^^_^^  as  are  provided  for  vein  or  lode  claims;  but  where  the  lands  have  been  previ- 
_  A      ously  surveyed  by  the  United  States,  the  entry  in  its  exterior  limits  shall  con- 
«^K^     form  to  the  legal  subdivisions  of  the  public  lands.    Rev.  St.  U.  S.  §  2329. 

J^jj:;^       GREGORY  and  another  v.  PERSHBAKER  and  another. 


tt 


1887.     Supreme  Court  of  California.     73  Cal.  109,  14  Pac.  401. 

-i  Ly,        Plaintiffs  are  grantees  and  successors  in  interest  of  Johnson  and 

^^^^    others,  who,  on  December  14,   1882,  located  the  Lucretia  mining 

'        claim  upon  gold-bearing  mineral  land  of  the  United  States,  in  Butte 

'  ^  county,  California.     Defendant,  on  December  22,  1882,  filed  his  ap- 

.  plication  for  a  patent  to  the  Howard  mining  claim,  which  included 

^^     a  portion  of  the  Lucretia  location.     Plaintiffs  brought  this  action, 


PLACERS.  63"^^        *^ 

under  sections  2325  and  2326,  Rev.  St.  U.  S.,  to  have  the  question  ^xxM'"^ 
of  right  of  possession  of  the  claim  determined.    The  Magaha  Mining  >  ^. 
Company,  by  leave  of  the  court,  intervened,  claiming  an  interest  in  1   *^ 
the  location  through  defendant.    The  court  found  that  neither  plain-  p'^*^ 
tiffs,  defendant,  nor  intervenor  had  any  title.     Plaintiffs  appealed.  v 

Other  facts  are  sufficiently  stated  in  the  opinion.  .     ,    1* 

McKiNSTRY,  J.^-  I.  It  is  contended  by  the  defendant  and  the  in-  ' i  ^  ^ 
tervenor  (respondents)  that  the  mineral,  if  any,  found  in  the  land  ^^  ■  '  ^, 
claimed  by  the  plaintiffs  herein,  constitutes  a  lode  within  the  mean-  L^^^j,,-^' 
ing  of  the  acts  of  congress;  that  ledges  or  lodes  can  be  located^  ^la-A 
only  in  a  manner  entirely  different  from  the  mode  adopted  by  plain-  \  v 
tiffs'  predecessors;  and  therefore,  however  regular  their  surface  ^^  '-^ 
location  might  have  been  as  a  location  of  a  placer  claim,  it  is  invalid  S^^P^ 
because  no  placer  exists  within  its  limits.  Wu/>-i-<j  < 

Finding  No.  5 1  of  the  court  below  is  as  follows :  "That  in  the  year  |^_*  ^,' 
1856,  John  Barrett,  and  others  associated  with  him,  discovered  on^^_  r^ 
the  westerly  bank  of  Little  Butte  creek,  on  the  south-east  quarter  of  . 

said  section  13,  a  thin  seam  of  gravel  cropping  out  between  an  under-  WlL«>-^ 
lying  bed  of  slate  rock  and  an  overlying  bed  of  lava  rock;  and,  find-«^  t) 
ing  that  the  said  seam  of  gravel  was  gold-bearing,  located  the  same  "Jlj^^jb 
as  and  for  a  mining  claim  under  the  name  and  designation  of  the  .,, 

'Burch  and  Barrett  Claim/  and  thereupon  commenced  to  work  and  *^Ci  T^^ 
develop  their  said  claim  by  excavating  a  tunnel  into  the  hill,  follow- -J ^^■^*-'**^; 
ing  the  course  of  the  channel,  and  the  said  channel  became  thicker  Cy«^^v 
and  better  developed  and  more  valuable  as  they  pursued  and  ex-  (Af\  c»^ 
plored  the  same  into  the  hill,  and  showed  that  the  said  deposit  was  t-^,;^  ' 
a  well-developed  channel,  varying  from  a  few  inches  to  eight  and    |  ^V» 
ten  feet  in  thickness,  and  from  eight  or  ten  to  forty  feet  in  breadth,-^*'*v|^  ' 
with  a  well-defined  bed  and  side  walls  of  slate  rock,  and  capped  by  #^^-*v  ^ 
a  thin  stratum  of  clay,  with  an  overlying  body  of  lava  rock  for  hang-  1*^^ 
ing  wall.  ^  Prior  to  the  year  1879  the  said  John  Barrett,  by  niesnej^^^^^ 
conveyances  from  his  associates  in  said  location,  became  sole  owner .  . 
of  the  said  Burch  and  Barrett  location,  and  in  that  year  sold  and  con-^f  W^-'"*^ 
veyed  the  same  to  the  intervenor,  the  Magalia  Gold  Mining  Com- „  i^s-y^^ 
pany,  a  corporation  duly  formed  and  organized  under  the  laws  of  the  j^v-v>  f«*6> 
state  of  California,  and  the  said  intervenor  thereupon  entered  into^^^^^^^^ 
and  took,  and  thence  hitherto  has  kept  and  held,  and  still  holds,  the  -** 

possession,  and  has  ever  since  continued  the  work  of  exploring  and  <i4A-'i^-v 
pursuing  and  working  and  mining  the  said  gravel  deposit  in  and  Kr\  "^  i 
along  the  said  channel  or  bed.  and  had,  in  the  spring  of  the  year  cx.vC^  ' 
1882,  pursued  and  opened  and  worked  the  said  gravel  channel  or  ^^^^^.gj^^ 
bed  in  said  south-east  quarter  of  said  section  13,  and  in  the  direction     1     / . 
of  the  said  south-west  quarter  of  said  section,  and  had  discovered  ^  *'^'*^ 
that  the  said  gold-bearing  channel  extended  towards  and  probably  UXMr^ 
into  the  said  south-west  quarter,  and  that  the  said  south-east  quarter  ^..^ 
of  section  13  contained  deposits  of  gold-bearing  gravel  in  quantity  ] 

^  Parts  of  the  opinion  are  omitted.        ^  /^tM?  J^*<*^  ftUt-lk^  Xj  ^^l^  *, 
'^^"^^     ^T"^"^"""--^  / /pV  ^v--^  ^4.  ^  ;2L  '  Uj-i^  ^1 


•JjT^  '  Q .  l^  K  ^♦^X    ^^-^^^ 


at^i 


•M 


—    ^        64  PRELIMIXARY   DEFINITIONS. 

sufficient,  not  only  to  pay  for  working  and  mining  the  same,  but 
7     ..  sufficient  to  render  the  said  quarter  section  of  great  value  for  mining 

purposes.     That,  after  the  commencement  of  this  action,  the  said 
jMagalia  Gold  Mining  Company  projected  and  extended  its  tunnel, 
^tf^nt^^fr-  mentioned  in  these  findings,  into  said  south-west  quarter  of  said 
j^  ,  "-       section  13,  following  the  said  gold-bearing  deposit  or  channel.    That 
_\         said  channel  in  its  course  into  the  hill  descends  or  drops  at  an  angle 
on  an  average  of  about  eight  degrees.     That  the  bed-rock  of  said 
channel,  during  its  entire  length  so  far  as  worked,  is  composed  of  a 
slate  formation,  and  upon  that  slate  formation  said  gravel  rests,  and 
over  said  gravel  is  a  formation  of  clay  gouge,  overlapping  said  min- 
eral deposit,  and  that  above  said  clay  seam  is  the  lava  which  extends 
to  the  surface ;  and  that  the  overlying  lava  rock,  at  the  point  where 
the   said   channel  crosses  the   easterly   line  of  the  said   south-west 
quarter  aforesaid,  is  about  six  hundred  feet  in  thickness.     That  said 
gravel  is  of  a  hard  nature,  and  in  mining  and  extracting  the  same 
*^''         has  to  be  detached  from  its  position  by  the  use  of  picks  and  gads, 
A>    •         and,  when  extracted,  is  taken  out  to  the  surface,  and  there  washed, 
a,,^      and  in  so  washing  gold  is  extracted  therefrom.     That  neither  gold 
I.  nor  any  other  mineral  was  discovered  within  the  boundaries  of  said 

^'*^*'"*^  south-west  quarter  of  said  section  13  until  the  said  tunnel  of  said 
^m^  ]\Iagalia  Company  penetrated  therein,  as  aforesaid.  That  said  pay- 
|L«V',  streak  of  gravel  and  deposit  does  not  crop  out  at  any  other  place  or 
>  ^i\A  places  than  the  place  where  the  same  was  discovered,  as  aforesaid ; 
'^.,  and  that  the  same  cannot  be  seen  or  reached  without  entering  the 

\  "^  works  of  the  said  Magalia  Gold  Mining  Company,  and  following 
■Q^i^'k  the  trend  and  meanderings  of  said  channel  to  the  present  face  of  the 
1^  Xv..  mineral  deposit,  except  by  sinking  a  shaft  or  running  expensive  tun- 
r^^.^  I  (  nels  other  than  those  run,  occupied,  and  used  by  the  intervenor 
»  therein." 

In  support  of  their  view,  counsel  cite  the  Eureka  Case,  4  Sawy. 

^  ft.^J/  302,  and  other  decisions  following  and  referring  to  that.     In  the 

;  Eureka  Case,  Mr.  Justice  Field  of  the  supreme  court  of  the  United 

*^^  ^      States  said :  "we  are  of  opinion  that  the  term  [lode]  as  used  in  the 

0^4    '       acts  of  congress,  is  applicable  to  any  zone  or  belt  of  mineralized  rock 

,        "1   lying  within  boundaries  clearly  separating  it  from  the  neighboring 

(K^y^  rock."    It  includes,  to  use  the  language  cited  by  counsel,  "all  deposits 

f^   Un    of  mineral  matter  found  through  a  mineralized  zone  or  belt,  coming 

1^01,    from  the  same  source,  impressed  with  the  same  forms,  and  appear- 

A  '^^S  ^°  have  been  created  by  the  same  processes."     This  definition 

/  ^fw9^  would  not  include  a  bed  of  gravel  from  which  particles  of  gold  may 

,  ftt^  t)e  washed.    The  words  "mineralized  rock"  were  evidently  intended 

to  qualify  the  last  as  well  as  the  first  sentence.     That  which  in  the 

Eureka  Case  was  declared  to  be  a  "lode"  was  a  zone  of  limestone 

lying  between  a  wall  of  quartz  and  a  seam  of  clay  or  shale,  the  one 

having  a  dip  of  45  deg.,  and  the  other  of  80  deg. 

Section  2320  of  the  Revised  Statutes  of  the  United  States  (1873- 

u^\    ^  MA^**.     Of     fin.    -^   ,      ^jLAJ^y^JxJLM^   0J»  C+u'^ 
€m^     4t^    Lri>*^-«  ^M^-ft^-it    (o«s,tA4>    «>*«-0--#» 


74)  treats  of  "mining  claims  upon  veins  or  lodes  of  quartz  or  other  iKJi*^ 
rock  in  place  bearing  gold;"  section  2322,  of  veins,  lodes,  and  ledges  l^uJtj", 
"the  top  or  apex  of  which"  lies  inside  of  surface  lines  extended  ver- 
tically downward.  V^-^^ 

In  Seane's  Neuman  and  Barretti   (by  Valazquez)   a  "placer"  is   ,| 
said  to  be  "a  place  near  the  bank  of  a  river  where  gold  dust  is  found."      -€**^^ 
In  the  last  edition  of  Webster,  which  gives  the  meaning  of  the  term      •        - 
as  approved  by  usage  in  Mexico  and  California,  it  is  defined:  "A 
gravelly  place  where  gold  is  found,  especially  by  the  side  of  a  river, 
or  in  the  bed  of  a  mountain  torrent."    Whatever  the  origin  of  the 
subterranean  channels  containing  gravel  beds,  they  have  long  been 
known  to  exist  in  California,  and  they  have  been  generally  supposed    v- 
to  be,  and  generally  spoken  of  as,  the  beds  of  ancient  rivers  in  which 
the  gravel  was  deposited  by  fluvial  action,  and  which  were  either      ^ 
from  their  beginning  subterranean,  or  upon  which  the  superincum-  -"*  ^''^ 
bent  earth  or  rock  has  been  hurled  by  means  of  convulsion,  caused  i^-<s^N- 
by  volcanic  or  other  natural  force.    That  the  bed  of  gravel  mentioned  r»^  0  v. 
in  the  findings,  to  the  limited  extent  it  has  been  prospected  by  the  in-    4^     1, 
tervenor's  tunnel,  "descends  or  drops  on  an  average  of  about  eight  tv>-1  n/ 
degrees,"  does  not  of  itself  make  the  gravel  deposit  a  lode  with  "a-.|tj^  <j.^ 
top  or  apex,"  nor  contradict  the  theory  that  the  channel  was  the^.^^^^,  j,.. 
channel  of  a  mountain  stream  or  torrent.  vi>>A 

The  terms  employed  in  the  acts  of  congress  are  used  in  the  sense  *'^''*"^ 
in  which  they  are  received  by  miners.     The  Eureka  Case,  supra.  ^'  >.^  k 
Moreover,  by  express  enactment,  "claims  usually  called  placers"  are   ^^jf. 
declared  to  include  all  forms  of  deposit,  "excepting  veins  of  quartz         '" 
or  other  rock  in  place."    Rev.  St.  U.  S.  §  3229.     Referring  to  the  V^vw  w 
common  use  of  the  word  by  miners,  to  the  dictionaries,  and  to  the  (  ..  i 
adjudications  of  courts,  the  gravel  bed  with  gold  therein,  as  described  ,^ 
in  the  finding,  is  a  placer.  ,    |       . 

Other  findings  of  the  court  below  strengthen  this  conviction.    The  H-^'^^'**' 
court  found  that  for  a  long  time  the  land  which  is  the  subject  of   U-w^ 
this  action  was  generally  reputed  and  understood  throughout  the  r»       » 
mining  district  in  which  it  is  to  be  valuable  placer  mining  ground,  [^  ^^ 
through  which  ancient  channels,  containing  gravel-bearing  gold  in  ^K.  ,>.. 
paying  quantities,  extended.     No.   13.     While  it  does  not  appear, 
except  inferentiahy,  that  ground  like  that  in  controversy  was  gen- 
erally located  as  placer,  neither  does  it  appear  that  there  were  district     ■  '^^ 
laws  with  respect  to  locations  of  veins,  lodes,  or  ledges;  and,  on  the  '"^ 

other  hand,  the  district  laws  with  reference  to  the  location  of  flat 
and  placer  claims  are  set  out  in  the  findings  at  length.     It  further  i^C^^ 
appears  that  the  intervenor  attempted  to  locate  the  ground  as  and  for    ^  .  / 
a  placer  claim,  and  its  application  for  a  patent  was  based  on  that  '^•"*'- 
location.    *    *    *  _*:*-/>/.  ■\-'. 

ludsrment  reversed,  and  cause  remanded  for  a  new  trial.^^  ^'  c 

^'  See  1  Lindley  on  Mines  (2  ed.)  §  427;  Costigan,  Mining  Law,  136.  -^  ^    lv.ju>,   W 


^t-f 


\%^^        66       '  PRELIMINARY   DEFINITIONS.      "  '  • 

WEBB  V.  AMERICAN  ASPHALTUM  MINING  CO. 

1907.     Circuit  Court  of  Appeals,  Eighth  Circuit. 
84  C.  C.  A.  651,  157  Fed.  203. 

u  In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Colorado. 

Before  Sanborn  and  Van  Devanter,  Circuit  Judges,  and  Phil- 
ips, District  Judge. 
'/      Sanborn,    Circuit   Judge.      This    action    involves    the    title    and 
the  right  of  possession  of  a  lode  or  vein  of  asphaltum  of  the  kind 
commonly  called  "gilsonite,"  upon  which  the  grantors  of  the  plain- 
tiff, Webb,  located  a  placer  claim,  and  the  grantor  of  the  defendant, 
the  American  Asphaltum  Mining  Company,  subsequently  located  two 
lode  mining  claims.    The  defendant  applied  for  a  patent,  the  plain- 
tiff filed  an  adverse  claim,  and  brought  this  action  to  determine  the 
title.    The  case  was  tried  by  the  court  upon  an  agreed  statement  of 
'  facts  and  some  extraneous  testimony,  and  the  court  found  for  the 
defendant.    The  latter's  objection  to  the  consideration  of  the  ques- 
tion whether  or  not  this  finding  is  sustained  by  the  evidence  would 
'  be  well  founded,  were  it  not  for  the  fact  that  the  agreed  statement 
discloses  all  the  material  facts,  and  the  evidence  which  was  taken 
was  immaterial.    Hence  the  issue  of  law  arises  in  this  court  whether 
or  not  the  agreed  facts  sustained  the  judgment,  and  that  issue  is  de- 
pendent upon  the  true  answer  to  the  single  question :  May  the  right 
to  the  possession  and  to  the  title  to  a  vein  or  lode  of  asphaltum  in 
rock  in  place  be  secured  by  the  location  of  a  placer  claim  upon  the 
^^  .     land  in  which  it  is  found  ? 
0  A  vein  or  lode  is  mineral-bearing  rock  or  other  earthy  matter  in 

^^"^      place  in  a  fissure  in  rock,  so  that  its  boundaries  are  sharply  defined 
^.y.      by  rocky  walls  in  place.     A  lode  location  is  the  location  of  such  a 
lode  or  vein  in  the  manner  prescribed  by  the  acts  of  Congress.     A 
placer  location  is  the  location  in  accordance  with  those  acts  of  a 
tract  of  land  for  the  mineral  bearing  or  other  valuable  deposits  upon 
or  within  it  that  are  not  found  in  lodes  or  veins  in  rock  in  place. 
It  is  a  claim  of  a  tract  of  land  for  the  sake  of  loose  deposits  on  or  near 
its  surface.    Clipper  Mining  Company  v.  Eli  Mining  &  Land  Com- 
"^        pany,  194  U.  S.  220,  228,  24  Sup.  Ct.  632,  48  L.  Ed.  944.    The  plain- 
V^j-  tif¥  in  this  case  has  made  no  claim  of  right  or  title  under  section  2333 
of  the  Revised  Statutes  [U.  S.  Comp.  St.  1901,  p.  1433],  and  the 
statements  and  discussion  herein  have  no  relevancy  to  such  a  claim 
or  to  the  proper  construction  of  that  section.     By  section  2319  of 
the  Revised  Statutes  all  valuable  mineral  deposits  in  lands  belonging 
to  the  United  States  are  declared  to  be  free  and  open  to  exploration 
Q,  ^    and  purchase.     By  the  second  section  of  the  act  of  July  26,  1866 
'  (14  Stat.  c.  262),  the  location  and  acquisition  by  means  of  a  lode 

mining  claim  of  any  "vein  or  lode  of  quartz,  or  other  rock  in  place 


J  5 


bearing  gold,  silver,  cinnabar,  or  copper"  were  authorized.    By  Act  '^-  ■— 
July  9,  1870,  c.  235,  16  Stat.  217,  Rev.  St.  §  2329  the  act  of  1866  -  - 
was  amended  by  adding  section  12,  which  provided  "that  claims,  ,  , 
usually  called  'placers'  including  all  forms  of  deposit,  excepting  veins  iJ^>  '"'^ 
of  quartz  or  other  rock  in  place"  might  be  entered  and  patented.   By  .1,  .  i'    ', 
the  act  of  May  10,  1872,  section  2  of  the  act  of  1866  was  repealed 
and  authority  was  granted  to  qualified  citizens  to  locate  and  acquire  ^ 

by  means  of  lode  mining  claims  "veins  or  lodes  of  quartz  or  other  '/ /,  ; 
rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper  or  other 
valuable  deposits."    Act  May  10,  1872,  c.  152,  §§  2,  9,  17  Stat.  91,  94, 
Rev.  St.  §  2320.  ' 

The  asphaltum  here  in  controversy  is  a  solid  valuable  mineral  de-   ^         ^ 
posit  commonly  called  "gilsonite"  which  is  found  in  a  vein  or  lode"-*^   '  ' 
m  rock  in  place.    But  counsel  for  the  plaintiff  insist  that  it  is  not  sub-  JLyy,^,^ 
ject  to  location  as  a  lode  because  it  is  not  a  metalliferous  deposit.  7       ti 
They  say  that  while  it  falls  within  the  literal  meaning  of  the  words  CMjp*^ 
"other  valuable  deposits"  in  section  2320,  those  words  should  be  in-  >».    i  * 
terpreted  by  the  rules  noscitur  a  sociis  and  ejusdem  generis,  and  that,  '^'^y^V 
as  all  the  deposits  specified  in  that  section  bear  metal,  the  intention  <;;^sJ4-0 
of  Congress  must  be  presumed  to  have  been  to  restrict  the  meaning  »       V^ 
of  that  term  to  deposits  of  the  same  kind.     The  rules  that,  where  M-T^ 
general  words  follow  specific  words,  the  former  are  presumed  to  /iUjli^^ 
treat  of  things  of  the  same  character  as  the  latter,  and  that  words ^^^^^^ 
and  terms  should  receive  the  interpretation  which  the  same  or  similar^TjV' 
terms  must  have  in  the  same  or  like  relations,  are  persuasive,  and  the^^oj^ 
argument   founded   upon   them   might   have   proved   convincing   if  1  JU 

other  considerations  could  have  been  ignored.    But  the  term  "other  f/^  ™^ 
valuable  deposits"  occurs  in  a  general  statute  enacted  to  provide  a^tvA-Oy 
comprehensive  and  complete  system  for  the  disposition  of  the  "^^^'yi^^^^nrJG 
eral  deposits  in  the  lands  of  the  United  States.    Separate  sections  or*^^_^  . 
clauses  of  this  general  legislation  may  not  be  lawfully  segregated  Aaav*  ^ 
from  the  body  of  the  statutes  upon  this  subject  and  interpreted  with-^U^^^C-^ 
out  reference  to  the  purpose  and  general  effect  of  the  other  laws  re-  .  9     .,^  * ' 
lating  thereto,  but  all  the  parts  of  this  legislation  must  be  considered ''  '  ^ 
and  construed  together,  to  the  end  that,  if  possible,  it  may  become    • 
and  be  a  uniform  and  practical  system  of  regulation  and  of  action.      cM/fiK-^ 

Section  2318  provides  that  all  "lands  valuable  for  minerals"  shall  U,jO) 


c 


be  reserved  from  sale,  except  as  otherwise  expressly  directed.  Sec-  ^,»  1 
tion  2319  declares  that  "all  mineral  deposits  in  lands"  belonging  to  rf/J^  i 
the  United  States  shall  be  open  to  exploration  and  purchase.  Section  JcJ*-^  <& 
2320  specifies  the  method  by  which  "veins  or  lodes  of  quartz  or  other  y^^  ^^.^^^^ 
rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper  or  other  »  %j. 
valuable  deposits"  may  be  secured,  and  section  2329  provides  that  ^  ^  \*^i 
"claims  for  placers  including  all  forms  of  deposit,  excepting  veins  of  '  tN  Mi ' 
quartz  or  other  rock  in  place  may  be  entered  and  patented."  The  (\i  », 
Y  j  "mineral  dei^osits"  treated  in  this  legislation  include  nonmetalliferous,"^^^^  ^ 
(  deposits,  alum,  asphaltum,  borax,  guano,  diamonds,  g}^psum,_resin,  C'**'*'^ 


:il 


68  PRELIMINARY   DEFINITIONS. 

***  marble,  mica,  slate,  amber,  petroleum,  limestone,  and  building  stone, 

as  well  as  deposits  bearing  gold,  silver,  and  other  metals,  and  the  term 
"lands   valuable   for  minerals"   in  the  law  means   all  lands  chiefly 
valuable  for  any  of  these  mineral  deposits  rather  than  for  agricultural 
purposes.    Northern  Pacific  Ry.  Co.  v.  Soderberg,  i88  U.  S.  526, 
534-537,  23  Sup.  Ct.  365,  47  L.  Ed.  575 ;  Pacific  Coast  Marble  Co 
v.  Northern  Pacific  R.  R.  Co.,  25  Land  Dec.  Dep.  Int.  233,  240.^*! 
Thus  it  clearly  appears  that  the  plan  of  this  legislation  was  to  provide r^ 
|^»^^   A  two  general  methods  of  purchasing  mineral  deposits  from  the  United'' 
^""^       States — one   by   lode   mining   claims    where    the    valuable    deposits^ 
sought  were  in  lodes  or  veins  in  rock  in  place,  and  the  other  by  placer! 
,  ■  ,  .       mining  claims  where  the  deposits  were  not  in  veins  or  lodes  in  rock 
\^  ,        in  place,  but  were  loose,  scattered,  or  disseminated  upon  or  under  J 
t'l        the  surface  of  the  land.     The  test  which  Congress  provided  by  this 
^_^'       legislation  to  be  applied  to  determine  how  these  deposits  should  be 
^^^        secured  was  the  form  and  character  of  the  deposits.     If  they  are  in 
uA  /*  \  .    veins  or  lodes  in  rock  in  place,  they  may  be  located  and  purchased 
f^C^    under  this  legislation  by  means  of  lode  mining  claims ;  if  they  are  not 
__..A      in  fissures  in  rock  in  place  but  are  loose  or  scattered  on  or  through 
.      '  the  land  they  may  be  located  and  bought  by  the  use  of  placer  mining 
f  >  S  ,      claims.    Reynolds  v.  Iron  Silver  Mining  Co.,  116  U.  S.  687,  695,  6 
Y^  y^J),Sup.  Ct.  601,  29  L.  Ed.  774;  Clipper  Mining  Co.  v.  Eli  Mining  & 

»    'Land  Co.,  194  U.  S.  220,  228,  24  Sup.  Ct.  632,  48  L.  Ed.  944. 
/>/5'v>^       The  maxims,  noscitur  a  sociis  and  ejusdem  generis,  are  but  aids  tO', 
^/J,,^(f) discover  the  true  intention  of  the  legislative  body,  not  arbitrary  rule's 
ho  be  used  to  thwart  its  purpose,  and  they  may  not  be  permitted  to 
4  «  N    •    prevail  where  the  words  of  the  statute  and  the  entire  act  in  which    -y 

»*^     they  appear,  or  the  entire  body  of  legislation  which  constitutes  the 
•  legislative  scheme  upon  the  subject,  clearly  show  that  the  application 

yivUiJi^  of  these  rules  would  have  the  latter  efifect.  The  words  "other  valu- 
^  u-<r-C«  able  deposits,"  in  section  2320,  taken  in  their  common  signification, 
^1  ^P  include  gilsonite  and  the  other  solid  forms  of  asphaltum,  for  these 
AiX-r-  ^^^  valuable  mineral  deposits ;  the  body  of  legislation,  of  which 
JL^'  section  2320  and  this  term  are  a  part,  treats  of  nonmetalliferous  as 
\'^*  well  as  metalliferous  deposits,  and  gilsonite  or  hard  asphaltum  in 
^"^"^^  a  vein  or  lode  in  rock  in  place  is  one  of  the  valuable  deposits  upon 
^  '  ^ '  which  a  lode  mining  claim  may  be  lawfully  located  under  this 
jOfK^t     section. 

Jil/x^U*..x^'~  In  1897,  however.  Congress  enacted  "that  any  person  authorized 
^9*t_K<^*°  enter  lands  under  the  mining  laws  of  the  United  States  may  enter 
0      /    and  obtain  patent  to  lands  containing  petroleum  or  other  mineral  oils, 

JV^vXTv      ""Whatever  is  recognized  as  mineral  by  the  standard  authorities  on  the/ 

\  subject,  whether  of  metallic  or  other  substances,  when  the  same  is  found  inriT 
|otrtA+>0  the  public  lands  in  quantity  and  quality  to  render  the  land  more  valuable  orT"^ 
I^H^^       account  thereof  than  for  agricultural  purposes  should  be  treated  as  comina 
.^Y /tM    within  the  purview  of  the  mining  laws."  Pacific  Coast  Marble  Co.  v.  Northern! 
T  /  r  **^  Pacific  R.  ^p.,  25  Land  Dec.  Dep.  Int.  233,  244.  -■    j-  ,  \^ 


tlX+«v  K^^vwSV' «-^^^  i'»-nr4'    PLACERS.    ^^^CcMa.^  uSU^'^A^   lyr^ 

and  chiefly  valuable  therefor,  under  the  provisions  of  the  laws  relat-  vV  i . 
ing  to  placer  mineral  claims''  (i\ct  Feb.  ii,  1897,  c.  216,  29  Stat.  526  •       •, 
[U.  S.  Comp.  St.  1901,  p.  1434] )  ;  and  counsel  for  the  plaintiff  con-  ' 
tend  that  gilsonite  and  the  other  forms  of  asphaltum  are  mineral 
oils  and  may  be  purchased  from  the  government  under  this  statute 
by  locating  placer  claims  upon  the  land  in  which  they  are  found.         y.L' 
Asphaltum  varies  in  its  consistency  from  a  liquid  or  semi-liquid  to  a       '  •-.  j 
hard  or  solid  condition.     The  deposit  here  under  consideration  is\^  "^U 
gilsonite,  and  is  neither  a  Hquid  nor  a  semiliquid,  but  a  hard,  solid  *?--^+  t 
substance.    Conceding  that  this  and  other  solid  forms  of  asphaltum  y^i^^^z 
may  fall  within  the  scientific  and  true  significance  of  the  term  mineral  i       ,  r 
oils  used  in  this  act  of  1897,  they  would  not  in  our  opinion  fall  within  f^  "t^^' 
the  meaning  which  that  term  would  convey  to  the  mind  of  a  citizen ^'-^M^ 
of  ordinary  intelligence.    To  such  a  man  the  words  convey  a  descrip-  -  ^■^^ 
tion  of  a  fluid,  and  not  of  a  solid  substance.     The  act  of  1897  was  t^  U*^ 
not  enacted  for  scientists  or  for  those  specially  learned  in  the  compo-  ^       .  • 
sition  and  analysis  of  geological  formations  alone  or  chiefly,  but  for 
citizens  of  common  intelligence  and  learning  who  might  desire  to   *  «        - 
buy  valuable  deposits  upon  the  lands  of  the  United  States  and  to  j-fci^-  < 
them  the  significance  of  these  words  "other  mineral  oils"  in  this  law,  ti^jjViA 
following,   as   they   do,  the   word   "petroleum,"   which   describes   a  '  « 

liquid,  is  liquid  or  semiliquid  mineral  oils,  and  it  does  not  include, 
gilsonite  or  the  hard  forms  of  asphaltum.     The  sense  in  which  the^  ^  y* 
reader  of  ordinary  knowledge  and   intelligence  would  take  these  ■|ckJJ^<J^ 
words,  the  obvious  common  meaning  of  them,  should  be  preferred  j-^ 

k^   to  the  recondite  signification  which  would  include  the  solid  forms         •  _ 
"^   of  asphaltum,  and  for  this  reason  the  act  of  1897  did  not  authorize  ^    •  '    "' 
''***^the  entry  of  lands  which  contain  these  deposits  by  means  of  placer -;^.  ,>-\ 
^*    claims.  '  f^^ 

K,         Again,  a  deposit  of  asphaltum  in  a  lode  or  vein  in  rock  in  place     .      ( 
I  jn    was  locatable,  as  we  have  seen,  by  means  of  a  lode  mining  claim,  ^  ^^^ 
--X  and  it  was  not  subject  to  location  by  a  placer  claim  under  the  acts  ofA.~^K,<-_ 
1^^*  1866  and  1872,  when  the  act  of  February  11,  1897,  was  passed.  Prior.    '  .     . 
^    to  August  27,  1896,  the  officers  of  the  land  department  had  held  that  ^'^'^^^^  " 
^    lands  valuable  for  petroleum  might  be  entered  and  patented  by  means  fUt  C  . 
1^^^  of  placer  claims  (In  re  Rogers,  4  Land  Dec.  Dep.  Int.  284;  In  rey^jo  i, 
^^  Piru  Oil  Company,  16  Land  Dec.  117;  Gird  v.  California  Oil  Com-  - 

eu^   pany  [C.  C]  60  Fed.  531),  but  on  that  day  the  Secretary  of  the  In-'Rj-*«cXv 
t-fesl'terior  decided  that  they  could  not  be  thus  located.   Union  Oil  Com— ^<.,^  kj^ 
\^  pany,  23  Land  Dec.  E)ep.  Int.  222.    The  nature  of  the  act  of  1897  -.i^^^\_ 
h5-f^  and  the  fact  that  it  was  passed  at  the  next  session  of  Congress  after        .     ( 
^•'**^this  decision  strongly  indicate  that  it  was  not  the  intention  of  that  **  ' '^ 
,     body  to  change  thereby  the  prescribed  method  for  the  entry  of  veins  ''V  -f*  •»» 
!/^"  ,pf  asphaltum  in  rock  in  place,  but  that  its  only  purpose  and  the  only  ^^jj^x^,>-i 

^effect  of  the  act  were  to  restore  the  rule  and  practice  regarding  ,      -^ 
-       petroleum  and  other  mineral  oils  which  were  not  found  in  veins  or  '      ^7^- 
lodes  which  had  prevailed  before  the  decision  in  the  Union  Oil  Com-  U..^\a^ 

^tn^vNjuu  ,  7  Yix^,  2/3^  ^^  yi^<vU  M,Q  .V,  ^-        '^  Plod,  ... 


Lji-r70  \         PRELIMINARY   DEFINITIONS.  /     ' 

P"^.'  pany  Case,  so  as  to  authorize  the  entry  of  lands  which  contain  them 

•^  ■  by  placer  claims. 

Caw^  Our  conclusion  is  that  gilsonite  and  the  harder  forms  of  asphaltum 

t/v<r^>  -  in  veins  or  lodes  in  rock  in  place  may  be  entered  and  patented  by 

;^^  means  of  the  location  of  the  lode  mining  claims  thereon,  and  that 

r^^^^^  ,  ,  they  may  not  be  secured  by  means  of  placer  claims  upon  the  land  in 

*    ,^^  which  they  are  found.                                                                                        a 

'    '  This  was  the  judgment  of  the  court  below;  and  it  is  affirmed.^^    Vi!r 

6f^    ( ,  "  In  Morrison's  Mining  Rights,  14  ed.  243,  Messrs.  Morrison  and  De  Soto 

seemingly  doubt  the  soundness  of  the  decision  in  the  principal  case. 

cA^i^  ^tc^  vtut^A^  ^c*^  ^'Ttr:'  """^  J. 


a 


t^t*v7 .    rUt^  4^*v.>  iU^wt  ^  'SJw/v'-'*'^C<J^v-<.<  -j^irvj;--v 

'  CHAPTER  II.      >tv^^  CXv^  ^  \  ^'"'-^    1*^  *■ 

WHO   MAY   AND   WHO    MAY    NOT   LOCATE   MINING   CLAIMS.      *^  VC»-v<< 

FEDERAL  STATUTE.  -^t^U  lvt^-^b  -f^  ^^  -^--^^  *1 

'1     Sec.  2319.    All  valuable  mineral  deposits  in  lands  belonging  to  the  United    ^ 
I  States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and  open  'vW<wa. 
T["  .:to*exploration  and  purchase,  and  the  lands  in  vi'hich  they  are  found  to  occupa-  > 

tion  and  purchase,  hy  citizens  of  the  United  States  and  those  who  have  de-  '■  ■       " 
;  ckred  'their  intention  to  become  such,  under  regulations  prescribed  by  law,  and  ;;, ; 
according  to  the  local  customs  or  rules  of  miners  in  the  several  mining  dis-       .U 
tricts,  so  far  as  the  same  are  applicable  and  not  inconsistent  with  the  laws  of  *-*-^^^ 
the  United  States.    Rev.  St.  U.  S.  §  2319.  ^  ,         .  jj 

Section  1. — Aliens.  ^^.ImlJSJL'*  w\<X*^y«*-^     ^ 

DUNCAN  V.  EAGLE  ROCK  GOLD  MINING  &  REDUCTION    ""^ 

CO. 


>*/ 


1910.    Supreme  Court  of  Colorado.    48  Colo.  569,  iii  Pac.  588. 


Action  by  the  Eagle  Rock  Gold  INIining  &  Reduction  Company 
against  John  T.  Duncan.  From  a  judgment  for  plaintiff,  defendant 
appeals.'     Reversed. 

White,  J.^     John  T.  Duncan  made  application  through  the  proper  ,    j-^ 
United  States  Land  office  for  patent  to  certain  lode  mining  claims   '' 
designated  as  survey  lot  No.  17,375,  situate  in  Sugar  Loaf  Mining  ^-^^  j  ' 
district,  Boulder  county.     The  Eagle  Rock  Gold  Mining  &  Reduc-    |^v^  ^ 
tion  Company  filed  an  adverse,  and  thereafter  within  the  time  lim- 
ited by  law  this  suit  in  support  thereof,  claiming  of  Duncan's  lodes 
>-)  Ij^  substantially  all  of  the  Black  Prince,  Black  Prince  No.  i,  and  Black 
'•'  f   ■  Prince  No.  2,  located  in  1904,  as  portions  of  its  Ellmettie  and  Grace    t  .;...- 
lodes,  located  in  1898,  Oro  and  Arlna  G.,  located  in  1899,  Everett,   . 
Washington,  and  Monarch,  located  in  1900,  and  demanding  dam- 
ages, reasonable  attorney's  fees,  and  expenditures  in  support  of  the 
adverse.     By  the  complaint  the  legal  right  to  occupy  and  possess 


(>V-. 


r 


^  Parts  of  the  opinion  are  omitted 


\r%%tl 


72  ^  WHO    MAY   AND   WHO    MAY    NOT    LOCATE.  Q 

) 

said  premises  and  to  the  possession  thereof  was  claimed  "by  virtue 
of  full  compliance  with  the  local  laws  and  rules  of  miners  of  said 
mining  district,  the  laws  of  the  United  States  and  of  the  state  of  Col- 
orado, by  pre-emption  and  purchase,  and  by  actual  possession  as  lode 
mining  claims  located  on  the  public  domain  of  the  United  States." 
Duncan,  defendant  below,  denied  specifically  the  allegations  of  the 
complaint,  and  alleged  title  in  himself  to  the  territory  in  question. 
The  replication  traversed  the  allegations  of  the  answer.  Upon  the 
issues  so  joined,  trial  was  had,  resulting  in  a  verdict  for  plaintiff,  the 
appellee  here,  for  possession  of  the  territory  in  dispute,  $225  ex- 
penses and  counsel  fees,  in  support  of  the  adverse,  and  $700  dam- 
ages. Motion  for  new  trial  interposed  and  overruled,  judgment  in 
accordance  with  verdict  entered,  and  writ  of  restitution  ordered. 
From  the  judgment  Duncan  prosecutes  this  appeal,  and  assigns  nu- 
merous errors,  only  a  few  of  which  we  deem  it  necessary  to  consider. 

Appellee,  to  prove  its  corporate  existence  and  its  citizenship,  in- 
troduced in  evidence  a  certified  copy  of  its  articles  of  incorporation 
showing  that  it  was  duly  organized  and  existing  as  a  corporation  un- 
der and  by  virtue  of  the  laws  of  the  state  of  Colorado.  No  other 
proof  of  the  citizenship  of  its  stockholders  was  made,  and  it  is  con- 
tended that  citizenship  in  that  respect  was  not  established.  It  ap- 
pears from  Jackson  v.  White  Cloud  Gold  Mining  &  Milling  Co.,  36 
Colo.  122,^  85  Pac.  639,  that  the  proof  upon  the  matter  in  question 
was  sufficient.  Appellee  acquired  some  of  its  claims  by  purchase 
and  the  others  by  location.  Of  the  former  were  the  Ellmettie  and 
the  Grace.  The  Ellmettie  location  certificate  was  filed  by  F.  J. 
Rogers  and  William  Capp,  and  an  amended  certificate  thereof  by 
William  and  M.  L.  Capp.  The  Grace  location  certificate  was  filed 
by  William  Capp.  There  was  no  evidence  that  Rogers  or  either  of  ]  | 
the  Capps  at  the  time  of  making  the  respective  locations,  or  the  con-  I  "tr" 
veyance  of  the  claims  to  appellee,  were  citizens,  or  had  declared  their/ /  ^ 
intention  of  becoming  citizens,  of  the  United  States.  Appellant  con- 
tends  that  the  appellee  could  not  sustain  its  adverse  as  to  these  two 
claims  because  it  failed  to  prove  the  citizenship  of  the  original  loca- 
tors, and  in  support  of  his  contention  cites  several  authorities. 

In  Lee  v.  Justice  Mining  Co.,  2  Colo.  App.  112.  29  Pac.  1020,  after 
announcing  the  statutory  rule  that  none  but  citizens  of  the  United 
States,  and  those  who  have  declared  their  intention  to  become  such, 
can  acquire  any  right  to  public  mineral  lands,  it  is  held  that  an  alien 
cannot  acquire  such  an  interest  in  a  mining  claim  upon  the  public 
domain  by  location  as  can  be  sold,  and  upon  which  a  subsequent  title 
can  be  predicated.  That  case  was  carried  to  this  court,  however,  and 
in  21  Colo.  260,  40  Pac.  444,  52  Am.  St.  Rep.  216,  was  overruled ;  it 
there  being  held  that  the  Court  of  Appeals  was  in  error  in  assuming 
that  the  record  in  the  case  presented  a  question  as  to  the  right  of  an 
alien  to  acquire  by  location  a  transferable  interest  in  a  mining  claim, 


iaJLJ' 


A  '^-ticX^u/or<: 


l\j  c/tfv.^^  /lev) 


vV,  U ,     M  rr^Jc^-^^ 


-^  ^'    "^'   ^  ALIENS.  73^1^-- 

as  that  question  could  not,  under  the  facts  there  presented,  be  raised,  ^.^tn-a-*"^ 
In  Thomas  v.  Chisholm,  13  Colo.  105,  21  Pac.  1019,  the  title  to  a^^,^^^^  j 
mining  claim,  based  upon  a  prior  location  made  by  one  Joseph  Hud- ^^^j,.^^  ^^^ 
son  and  the  Kansas  City  Alining  &  Smelting  Company,  a  corpora-  ^^^^^ 
tion,  and  by  them  assigned  or  conveyed  to  Chisholm,  the  defendant,^^' 
was  under  consideration  in  an  adverse  suit,  and  it  was  expressly  held       ^  c'' 
necessary  to  allege  and  prove  the  citizenship  of  the  original  locator  ^-^-^^  ' 
or  locators,  as  well  as  the  citizenship  of  the  successful  party  to  the"^  V*^' 
action.  _    U*-J-*^  ^ 

Appellee  contends,  notwithstanding  these  decisions,  that  the  citi-^£jj^  £ 
zenship  of  the  original  locator  is  material  only  where  he  continues  ^^.^^^^jVi 
be  the  claimant  to  the  time  of  the  institution  and  determination,  of  ,/^ 

an  adverse  suit.     It  must  be  conceded  that  many  authorities  so  hold  ^  CJMu^ 
Such  is  the  doctrine  announced  in  ^Morrison's  Mining  Rights  (i2th^,^__,^^J5  j 
Ed.)  p.  286;  Lindley  on  IMines,  §  233,  and  other  authorities.-     We,5^J^  ^^ 
are  constrained,  however,  to  adhere  to  the  doctrine,  heretofore  an-..     J,      . 
nounced  by  this  court,  until  there  is  a  specific  holding  to  the  con-^'     ^^ 
trary  by  the  United  States  Supreme  Court.     Appellee  insists  that«  ^->-f^  J 
such  pronouncement  has  already  been  made  by  that  tribunal,  and'»^»<^^**^  ^ 
that  the  doctrine  of  Thomas  v.  Chisholm,  supra,  has  been  overturned'^^^^  4 
in  AIcKinlev  Creek  AI.  Co.  v.  Alaska  U.  Co.,  183  U.  S.  563,  571,  220^  Lt*  ^ 
Sup.  Ct.  84,  46  L.  Ed.  331,  and  Alanuel  v.  Wulfif,  152  U.  S.  505,  i4-tCL  U--^' 
Sup.  Ct.  651,  38  L.  Ed.  532.     We  are  of  the  opinion  that  neither  of^^,.^  y^? 
the  cases  goes  to  the  extent  claimed  by  appellee.    ]\Ianuel  v.  Wulff  ^tj^v^,^^ 
holds  that  a  deed  of  a  mining  claim  by  a  qualified  locator  to  an  alien  »^^    ) 
operates  as  a  transfer  of  the  claim  to  the  grantee,  subject  to  q^^^s^io^rj^^,^ 
in  regard  to  his  citizenship  by  the  government  only,  and  if  such  aUen^''*' 
becomes  a  citizen,  or  declares  his  intention  to  become  such  at  any  V.KWi 
> ,  time  before  judgment  in  a  contest  concerning  such  mining  claim,  they^^^Jjr  x^ 
-  '    alien's  disab'ilitv  to  take  title  is  therebv  removed.     In  that  case,  on 
^  page  511  of  152  U.  S.,  on  page  653  of  14  Sup.  Ct.  (38  L.  Ed.  532),  it  n^AOMfUA 
is  said :     "We  are  of  opinion  on  this  record  that  as  Alfred  ]\Ianuel  ^^  ^^J^ 
^  (the  original  locator)  was  a  citizen,  if  his  location  were  valid,  his   -  \jr^ 
'  claim  passed  to  his  grantee,  not  by  operation  of  law,  but  by  virtue  of  -^-^  v  «->^ 
1^  his  conveyance,  and  that  the  incapacity  of  the  latter  to  take  and  hold  £*^*;£^J:'>:< 
,-f-  by  reason  of  alienage  was  under  the  circumstances  open  to  question^^^^^  ^^ 
•'  bv  the  government  only.     Inasmuch  as  this  proceeding  was  basedTi   •  ^ 
upon  the  adverse  claim  of  Wulfif  to  the  application  of  Moses  Alanuel  ^ 

for  a  patent,  the  objection  of  alienage  was  properly  made,  but  thisT>''*-M-4  "^ 
was  as  in  right  and  on  behalf  of  the  government,  and  naturalization  l^i^ju^  * 
removed  the  infirmity  before  judgment  was  rendered.  *  *  *  And  ^j^^  i^ 
as  Moses  ^Manuel  wa's  the  grantee  of  a  quaUfied  locator,  and  became  ^^^  ,  C^ 
naturalized  before  the  order,  we  conclude  that  there  was  error  in  the  ^^  i{Ci^' 

bee  Costigan,  Mining  i.aw,  lo/-loy.         ,'  jA/  ^    b*  ^       «        #.-^ 


rf-t,jft  74  WHO   MAY   AND   WHO    MAY    NOT    LOCATE. 

CM,^,  direction  of  a  nonsuit."^     McKinley  Creek  Mining  Co.  v.  Alaska 
Mining  Co.,  supra,  does  not  appear  to  be  an  adverse,  but  rather  a 
controversy  in  which  the  federal  government  was  neither  directly 
nor  indirectly  interested.    *    *    * 
'^^'i  It  appears  by  these  decisions  that  the  court  went  no  further  than 

to  hold  that  whoever  is  occupying  the  public  domain  under  an  ap- 
parent valid  claim  has  a  right  to  so  continue  until  ousted  by  the  gov- 
ernment itself ;  that  is,  the  citizenship  of  the  holder  and  the  original 
locator  of  the  mining  claim  is  subject  to  question  only  by  the  sov- 
JB^  X,  !  ereign.  In  support  of  the  proposition  that  a  location  made  by  an 
.  I.'  alien  can  be  conveyed  to  a  citizen,  and  when  vested  in  the  latter  is  as 

'  C?^'  complete  as  if  originally  acquired  by  him  by  location,  and  that  the 
f  ^aA^'  ■  government  itself  cannot  assail  his  title,  Mr.  Lindley  in  his  work  on 
*  A  '  '  Mines,  §  233,  argues  that,  if  the  government  can,  by  direct  convey- 
<K  |A-  -'•  .'  ance  to  an  aUen,  vest  in  him  a  title  to  the  absolute  fee,  it  folk)ws 
M^\K^^  that  an  alien  can  acquire  a  limited  estate  by  location,  subject  to  an 
•vji^l^  inquiry  as  to  his  qualifications,  when  he  seeks  acquirement  of  the 
lJiJ2  U"  ultimate  fee.  Unquestionably  the  sovereign  is  a  competent  grantor 
Mi;f«v»  ^"  ^^^  cases  in  which  an  individual  may  grant,  but  in  the  case  of  min- 
'^\  ■  -*^-^*ing  claims  it  will  not,  and  does  not  knowingly,  grant  to  an  alien.jj^ 
*^i?  '  '  Inasmuch,  however,  as  every  person  is  supposed  a  natural  born  suS- 
t>-fcvai^  ject  that  is  resident  in  the  kingdom,  the  sovereign  in  effect  says  to 
^/^^^ ,  all,  a  certificate  of  location  of  a  mining  lode,  complete  in  itself,  gives 
^_^^^^*,/-  an  apparent  right  which  must  be  recognized  until  the  sovereign  in- 
T^llu  quires  into  its  validity.  When  the  inquiry  is  made,  the  apparent  right 
,     '^      becomes — what  it  really  is — no  right  at  all. 

t^H,'-«  J  q-j^g  mineral  lands  of  the  United  States  are  open  to  exploration 

^  f  J^w    and  purchase  only  by  citizens  of  the  United  States,  or  by  those  who 

fy  ,      have  declared  their  intention  to  become  such.     As  citizenship  goes 

'^  JL  ,      to  the  very  inception  and  initiative  of  the  title  or  right  to  hold  as 

flc*^i ,     against  the  government,  a  noncitizen  can  never  make  a  valid  location, 

j^  ^X.-f    though  one  so  made  is  apparently  valid.     Proceedings  to  obtain 

1    y  . ,    title  to  mining  property  are  in  the  nature  of  "inquest  of  office." 

^|'^x"In    such    cases    the    sovereign    is    a    party    in    fact    to   the    pro- 

y^'^\       ceeding,    which    is    a    direct  one,    for    the    procurement    of    title, 

><^     ,    and  the  objection  of  alienage,  no  matter  by  whom  suggested,  is  based 

v'-^*^  )  solely  upon  the  right  of  the  government  to  interpose  the  fact  of  alien- 

^j4  t         age  as  a  bar  to  procuring  or  holding  an  interest  in  realty.     If,  how- 

^^^ji^  t  ever,  the  grant  of  title,  or  the  equivalent,  is  made  to  an  alien,  it  can- 

7*^  A  not  be  attacked  by  any  third  party."   Billings  et  al.  v.  Aspen  M.  & 

A  fHv^   S.  Co.  et  al,  52  Fed.  250,  3  C.  C.  A.  69.     *     *     * 

if     \a}   '^      ^^  ^^^^  "*-*^  prolong  this  opinion  by  discussion  of  other  errors  as- 

;  — '  1 .  u  J.  1  (.  <>  vi^'^  •  ^ '  ^  •  ^-^^^^  •'- ' "  •    ■  ■  •■ '  -^-^  ■ 

>f .  K-«<^fv  *0n  the  effect  of  Manuel  v..Wulff,  see  McKinley  Creek  Min.  Co.  v.  Alaska 
rv/v,  C&^> United  M.  Co.,  post  p.  192. 

y^^4^xA   '^   ^-A--ii.<>^   2,    ix^-V^  U'^.^  K-<v>-  ^--^    ptvi.'^^^-*,^  ^-^ 


'lfy\»^i^   A  *^f^  K.^*^  ftw-<a)  *»*-^-Ji>  ^■^^*^^  ^\'f^ 

^^.^  Ct/-v^^^  Ci  c;f,  tnXw«  4U.*Jm  C^J4jf,  '^ 

-^  uX/7  ,       CU-U-/^  iSW^A-^^  A*!..^   ^^^AUe-T-W' 


^  CHICAGO    ^EACH    HOTEL      -'*'"^'**-*  ' 

,  ^CHICAGO  . 


signed,  as  it  is  clearly  evident  the  judgment  must  be  reversed,  and  it     ^"^ 
is  so  ordered.  ^^  .       ^         vi  .  ,  i  ^ 

1^*^-^  Judgment  reversed.*        -H%ju-4-t^Vvv-/-TP  f%  0  'f*  ^>^»'fw>\*^  kt»-o-\  I^^a^  ^ 

^  t-^  Km  doe  v.  WATERLOO  MIN/CO.  ^   ^TTm        <      i^ 

I,  'j  ■  \  '^^  '^"-^'  ^"^^--^  p 

N  ,  ,1895.    Circuit  Court  of  Appeals.     17  C.  C.  A.  190,  70  Fed,  455.  *KWx  ' 

*^        Appeal  from  the  Circuit  Court  of  the  United  States  for  the  South-  ^        * 
fs,      ern  District  of  California.  pVr^ 

^       This  was  a  suit  commenced  by  John  S.  Doe  against  the  Waterloo  W  v»J^ 
<K.      Mining  Company,  pursuant  to  Rev.  St.  §§  2325,  2326,  to  determine  vPC* 
the  right  of  possession  of  mining  lands  for  which  conflicting  applica-  ''"v:^t:<^ 
v^   tions  for  patents  had  been  filed.     A  demurrer  to  the  complaint  was  ■     ^^ - 
LA/'    overruled  (43  Fed.  219)  and  a  decree  was  rendered  for  the  defend-        ,  f- 
^j  ant  (55  Fed.  11).     Complainant  appeals.    Affirmed.  ^^(P 

^*^    Before  Gilbert,  Circuit  Judge  and  Knowles  and  Hawley,  District  *"  "-■',j«, 
^M' Judges.  'v/;...^6 

-O         Knowles,  District  Judge. ^    *    *    *    'pi^g  thirteenth   assignment ,  ^   .  ^ 


of  error  is  that  the  decree  was  erroneous  because  it  does  not  appear.      « 
'^in  the  pleadings,  anywhere,  that  the  stockholders  of  the  Waterloo  T> 


in  the  pleadings,  anywhere, 
^      Mining    Company,    the    defendant,    were    citizens    of    the    United  ^ ';  f?*^' 
\        States.    *    *    *    '  C(-t^ 

^ »c.»</PU3mpare  the  case  of  Waskey  v.  Hammer,  post,  p.  82.    In  Holdt  v.  Hazard,     ^  . 

Ir-      10  Cal.  App.  440,   102  Pac.  540,  an  ejectment  action  for  mining  claims  notCAfv)^  - 

"^     brought  in  support  of  an  adverse  claim,  Shaw,  J.,  for  the  court,  in  affirming  ^^  J^^ 

lxjij,a.  judgment  for  the  plaintiflfs,  said: 

,  "The  finding  to  the  effect  that  each  of  said  plaintiffs  was  a  citizen  of  the  -M  M^  ^ 

■^T^-   United   States   is   not   supported  by  the   evidence.     That   question,   however,  _j_vjj^^ 

v^jVs  was  not  in  issue,  and,  so  far  as  it  concerned  the  rights  of  the  parties  to  this    ^  .,     -^ 

^         action,  it  was  wholly  immaterial  whether  plaintiffs  were  citizens  or  aliens.    I,  '"•-*■'  ~' 

\  t     Their  citizenship  is  a  matter  which  concerns  the  government  of  the  United 

.  -  ^   States  only.     Notwithstanding  the   fact  that  the   contrary  has  been  held  in 

f\  '{   some  jurisdictions,  it  is  now  well  settled  by  the  decisions  of  the  courts  of  the  ^•«.    \ 

0  United   States  that  the  question  of  qualification  of  the  locator  of  a  mining  ,    ^ 

5        claim,  so  far  as  the  validity  thereof  is  affected  by  his  alienage,  is  one  which      "'-   ^ 

^       cannot  be  raised  or  determined  in  actions  between  private  individuals  wherein      ^•^fcyr^ 

*f      the  United  States  is  not  made  a  party.     Billings  v.  Smelting  Co.,  51  Fed.  338,  ,  >  . 

1  r   2  C,  C.  A.  252;  Manuel  v.  Wulff,  152  U.  S.  507,  14  Sup.  Ct.  651,  38  L.  ed.^l<    C 
"^^^  532;  McKinley  Creek  Min.  Co.  v.  Alaska  Min.  Co.,  183  U.  S.  563,  22  Sup.  Ct.  t,..^^^^^ 
^        84,  46  L.  ed.  331;  Snyder  on  Mines,  §  267;  Costigan  on  Mining  Law,  §  47;  .        ^ 

Tornanses  v.  Melsing  et  al.,  109  Fed.  710,  47  C.  C.  A.  596."  _       'Kr-tc  . 

t^^        The  issue  of  citizenship  is  properly  raised  in  an  adverse  suit,  as  the  United  < 

States  is  a  quasi  or  silent  partv  to  it,   (Matlock  v.  Stone,  77  Ark.  195,  91  S. 

W.  553 ;   Wilson  v.   Freeman,  29  Mont.  470,  75   Pac.  84,  68  L.  R.  A.  833,)  v;   .^,  n 

though  it  is  not  a  partv  for  all  purposes.     Butte  Land  &  Investment  Co.  v. 

Merriman,  32  Mont.  402,  80  Pac.  675.  C^^^skaj    . 

-■ —       °  Parts  of  the  opinion  are  omitted.    See  post  p.  177  for  some  of  such  parts.   "f't/vXrt  C 


,  ^^,       76  WHO    MAY   AND    WHO    MAY    NOT    LOCATE. 

^^  The  question  presented  in  the  thirteenth  assignment  of  error  af- 

>  *^i      fects  the  jurisdiction  of  the  lower  court  and  of  this  court.     It  does 

k    ^J    not  appear  in  any  of  the  pleadings  or  in  the  evidence  that  the  stock- 

,  r        holders  of  the  Waterloo  Mining  Company  were,  all  or  any  of  them, 

'**'^''  citizens  of  the  United  States.     The  plaintifif  would  not  be  benefited 

M<^     by  this  omission  if  it  were  true  that  none  of  said  stockholders  were 

citizens.     It  is  alleged  in  the  answer  that  Newbill  and  his  colocators 

were  all  citizens  of  the  United  States.     This  fact  is  stated  in  their 

^       location  notice,  and  that  is  in  evidence  in  this  case.     Newbill  and 

^^'     Parks  both  testify  to  their  citizenship.  An  affidavit  of  one  Emil  A. 

r  C^      Sanger,  in  evidence,  states  that  all  of  said  locators  were  citizens  of 

4  ^    the  United  States.     Tliq  grantees  of  these  locators  would  be  en- 

^^^:i  titled  to  the  possession  of  the  premises  located,  as  against  plaintiff. 

f^'^      Manuel  v.  Wulff,  152  U.  S.  505,  14  Sup.  Ct.  651.     The  question 

,  \  '    might  be  considered  as  affecting  the  duty  of  the  court  to  find  against 


,ii7„ 


the  defendant.  In  the  case  of  McKinley  v.  Wheeler,  130  U.  S.  630, 
9  Sup.  Ct.  638,  the  supreme  court  holds  that  a  corporation  all  of 
whose  stockholders  are  citizens  of  the  United  States  had  the  power 
to  locate  a  mining  claim.  The  inference  is,  although  not  stated,  that 
~"^ ''  only  corporations  whose  stockholders  are  citizens  of  the  United 
-(^-^     States  can  locate  such  claims.*^     Section  2325  of  the  Revised  Statutes 


'"The  sole  question  presented  for  our  determination  is  whether  a  corpora- 
XtJl'>'  tion  created  under  the  laws  of  one  of  the  states  of  the  Union,  all  of  whose 
members  are  citizens  of  the  United  States,  is  competent  to  locate  or  join  in  the 
location  of  a  mining  claim  upon  the  public  lands  of  the  United  States  in  like 
\_fv-,'  manner  as  individual  citizens.  The  question  must,  of  course,  find  its  solution 
«       ■     in  the  enactments  of  congress. 

ft^l  ^      "Section  2319  of  the  Revised  Statutes  provides  as  follows  :  'AH  valuable  min- 

r    (1^1    eral  deposits  in  lands  belonging  to  the  United  States,  both  surveyed  and  unsur- 

'.  veyed,  are  hereby  declared  to  be  free  and  open  to  exploration  and  purchase, 

^-^       and  the  lands  in  which  they  are  found  to  occupation  and  purchase,  by  citizens 

of  the  United  States  and  those  who  have  declared  their  intention  to  become 

/C*-'y  such,  under  regulations  prescribed  by  law,  and  according  to  the  local  customs 

l^jj  C/,  or  rules  of  miners  in  the  several  mining  districts,  so  far  as  the  same  are  ap- 

^^        plicable  and  not  inconsistent  with  the  laws  of  the  United  States.'     It  will  be 

?n»*  ■   observed  that  no  prohibition  is  here  made  against  citizens  of  the  United  States 

1/  uniting  together  for  the  occupation  and  purchase  of  public  lands  containing 

^  ^      'valuable  mineral  deposits.'    Nothing  is  said  of  partnerships  or  associations  or 

D    l7  corporations.    It  is  to  citizens  that  the  privilege  is  granted,  and  that  they  may 

*-*^  f   unite  themselves  in  such  modes  in  all  other  pursuits  was,  as  a  matter  of  course, 

.  well  known  to  those  who  framed  as  well  as  to  those  who  passed  the  statute. 

»\>Cv.M  There  was  no  occasion  for  special  reference  to  the  subject  to  give  sanction  to 

JJgf  1  these  modes  of  uniting  means  to  explore  for  mineral  deposits  and  to  develop 

/i     '  them  when  discovered.     *     *     *     At  the  present  day  nearly  all  enterprises,  for 

^Ji5l>{»    the  prosecution  of  which  large  expenditures  are  required,  are  conducted  by 

f  J,      corporations.     *     *     *     They  are  little  more  than  aggregations  of  individuals 

^t<  "^^united  for  some  legitimate  business,  acting  as  a  single  body,  with  the  power  of 

iL/    \    succession  in  its  members  without  dissolution.     We  think,  therefore,  that  it 

''  ^*'''»  would  be  a  forced  construction  of  the  language  of  the  section  in  question,  if, 

».M<   ')    because  no  special  reference  is  made  to  corporations,  a  resort  to  that  mode  of 

uniting  interests  by  different  citizens  was  to  be  deemed  prohibited.     There  is 

nothing  in  the  nature  of  the  grant  or  privilege  conferred  which  would  impose 


iV^VV    <[     C^vTV^-vA-^    ^Nja-T-*-        CORl'ORATIONS.  U  77' 

provides  that  persons  who  can  locate  mining-  claims  may  make  an 
-.  ?    application  to  patent  the  same.     The  question  would  arise,  how  is  '      - 
this  citizenship  of  stockholders  to  be  established?     It  is  alleged  in     A^ 
the  bill,  and  expressly  admitted  in  the  answer,  that  the  appellee  is  a      \^l 
corporation  organized  and  existing  under  the  laws  of  Wisconsin.     A   *' 
certified  copy  of  its  articles  of  incorporation  were  introduced  in  evi-  )|>***4*J 
dence.     Section  2321,  Rev.  St.,  provides:  ^.  f  *r 

"Proof  of  citizenship  under  this  chapter  may  consist  in  the  case  of  an  indi- 
*^w»*'Sridual  of  his  own  affidavit  thereof,  in  the  case  of  an  association  of  persons  ;  ,,  ,    , 
'^      unincorporated,  of  the  affidavit  of  their  authorized  agent  made  of  his  own  "    * 

^^^      knowledge  or  upon  information  and  belief,  and  in  the  case  of  a  corporation  v/v^Vi^ 

organized  under  the  laws  of  the  United  States  or  of  any  state  or  territory 
,.•        thereof  by  the  tiling  of  a  certificate  of  incorporation." 

The  question  might  arise,  why  would  the  certificate  of  incorpora- 
tion establish  the  citizenship  of  the  stockholders?     In  considering 
the  question  of  jurisdiction  in  the  federal  courts,  it  is  an  established 
rule   that,   when   a   corporation   organized   under   state   laws    is   a 
party,  it  is  conclusively  presumed  that  the  stockholders  thereof  are   ' 
all  citizens  of  that  state.     Muller  v.  Dows,  94  U.  S.  445.     Congress 
was  familiar  with  this  rule,  and  it  seems  probable  intended  to  estab- 
lish a  similar  rule  under  the  mineral  land  act  of  1872.     The  practice  . 
in  the  United  States  land  office  has  been,  I  think,  universal,  not  to  ^-^-^j 
require  of  a  corporation  seeking  to  patent  mining  ground  proof  of  .  V^  < 
the  citizenship  of  its  stockholders,  other  than  by  the  production  of  a  1"^  .   i 
certified  copy  of  articles  of  incorporation.     After  the  passage  of  the  »'-**^ 
act  of  JMarch  3,  1887  (24  Stat.  477),  which  provided  that  no  corpora-  *-    "} 
tion,  more  than  20  per  cent,  of  the  stock  of  which  was  owned  by  per-  ( 

sons  not  citizens  of  the  United  States,  should  acquire  real  estate  in 
the  territories  of  the  United  States  or  the  District  of  Columbia,  cor-  1  .,  - 

such  a  limitation.     It  is  in  that  respect  unlike  grants  of  land  for  homesteads  " 

and  settlement,  indicating  in  such  cases  that  the  grant  is  intended  only  for  ;  ^j%jq 
individual  citizens.    The  development  of  the  mineral  wealth  of  the  country  is  » 

promoted,  instead  of  retarded,  by  allowing  miners  thus  to  unite  their  means. 
<^W        This  is  evident  from  the  fact  that  so  soon  as  individual  miners  find  the  neces-  ^ 
ffi^      sity  of  obtaining  powerful  machinery  to  develop  their  mines,  a  corporation  is  ""  *><-- 
;fU         formed  by  them,  and  it  is  well  known  that  a  very  large  portion  of  the  patents  ^j^s  ^  J 
_>-     for  mining  lands  has  been  issued  to  corporations.     *     *     *     We  are  of  opin-     ■"*" 
^         ion  that     *     *     *     section  2319  of  the  Revised  Statutes  must  be  held  not  to  UTW  • 
preclude  a  private  corporation  formed  under  the  laws  of  a  state,  whose  mem-  , 
bers  are  citizens  of  the  United  States,  from  locating  a  mining  claim  on  the  '    ;' 
public  lands  of  the  United  States.    There  may  be  some  question  raised  as  to   ^^  ,-^^_^ 
the  extent  of  a  claim  which  a  corporation  may  be  permitted  to  locate  as  an   ^  "      ' 
'    >       original  discoverer.    It  may,  perhaps,  be  treated  as  one  person,  and  entitled  to  -*  ^A  > 
^       locate  only  to  the  extent  permitted  to  a  single  individual.    That  question,  how-    i    '  ^ 
ever,  is  not  before  us,  and  does  not  call  for  an  expression  of  opinion."    Field,  ii  «*" 
J.,  in  AIcKinley  v.  Wheeler,  130  U.  S.  630,  ^2  L.  ed.  1048,  9  Sup.  Ct.  638.    In  <^  i,y^ 
Coalinga  Hub  Oil  Co.,  40  Land  Dec.  Dept.  Int.  401,  the  land  department  holds     -Um 
that  a   corporation  may  not  legally  locate  more  than   twenty  acres   in   one  ^  *^  d 
placer  location  either  in  its  own  name  or  thrqugh  individuals  acting  for  it.      ^   'iVw^yi 

a 


\.  y^\ 


u 


^- 


«r^ 


.  ^,  A  ^f!t^i4A  a-^ri^-  u.j.ci^/    (PiWj^r  ^ 

/^,    78  yWHO   MAY   AND   WHO   MAY    NOT    LOCATE.  IT    C^-V^^^J^t^ 

porations  making  application  to  patent  mining  claims  in  a  territory 
were  required  to  show  that  80  per  cent,  of  their  stockholders  were 
citizens  of  the  United  States.  But  this  rule  never  prevailed  under 
the  mineral  act  of  1872  anywhere.  It  would  have  been  a  great  hard- 
ship on  a  corporation  to  have  had  to  prove  that  all  of  its  stockholders 
were  citizens  of  the  United  States.     The  practice  in  the  land  depart- 

5jV..'      ment  of  the  United  States  under  this  statute  should  have  great 
,    ;  weight  in  construing  it.     Hahn  v.  U.  S.,  107  U.  S.  402,  2  Sup.  Ct. 

'•  ^      494;  U.  S.  v.  Moore,  95  U.  S.  760;  Brown  v.  U  S.,  113  U.  S.  568,  5 

^  '•  ■  Sup.  Ct.  648.  Considering  the  statute  and  the  practice  thereunder, 
I  think  the  citizenship  of  the  stockholders  of  the  Waterloo  Mining 
Company  was  sufficiently  established.  It  was  not  necessary  to  allege 
in  the  answer  what  was  conclusively  presumed  from  the  facts  alleged. 

'^  t  ■       Hence  it  was  not  necessary  to  have  alleged  in  the  answer  that  the 

-■  -j^vj^,stockholders  of  appellee  were  citizens  of  the  United  States. 
»  *^-     With  these  views-  of  the  law  in  this  case,  I  think  the  decree  in  this 

'  fW^  case  should  be  affirmed,  and  it  is  so  ordered.     The  decree  is  affirmed, 

,  C^^     with  costs  of  appellee. 

^"^f  Section  3. — ^Infants  and  Agents. 

^'^'^  "*  THOMPSON  AND  OTHERS  v.  SPRAY. 

I^^Jl   1887.     Supreme  Court  of  California.     72  Cal.  528,  14  Pac.  182. 


•  ••'•«nJ.. 


Suit  to  quiet  title  by  appellants,  Alex.  Thompson,  Matilda  Thomp- 
3^Y    ^son,  Margaret  Thompson,  Bedelia  Thompson,  James  Thompson,  and 

Alex.  Thompson,  Jr.,  a  minor,  by  his  guardian  ad  litem.  *  *  * 
'-y-'  Hayne,  C.^  *  *  *  Upon  the  close  of  the  plaintiffs'  evidence 
H,  Us  several  motions  for  nonsuit  were  made  and  granted.  *  *  *  Xhe 
.  mJ.  defendant  then  moved  for  a  nonsuit  as  to  James,  Matilda,  and  Alex. 
*  Jy^Thompson,  Jr.  This  motion  was  denied  as  to  Matilda,  and  granted 
"Hj'  as  to  the  others.  It  was  upon  four  grounds,  viz.:  That  they  were 
J!^.."j  not  citizens  of  the  United  States;  that  they  were  minors  at  the  time 

of  the  [placer  mining]  location ;  that  the  use  of  their  names  was  un- 

**-i^    authorized ;  and  that  the  notice  was  recorded  before  it  was  posted. 

,  **■.         Were  the  plaintiffs  citizens  of  the  United  States  at  the  time  the 

location  was  made?   We  think  the  evidence  shows  that  thev  were. 
*     *     * 

*'^**^  Does  the  fact  that  these  plaintiffs  were  minors  at  the  time  of  the 
■••W-  location  invalidate  the  notice  as  to  them?  We  have  not  been  referred 
^^^''  to  any  decision  which  holds  that  it  does.  The  provision  of  the  stat- 
^^  ute  is  that  mineral  deposits  in  public  lands  are  open  to  "citizens  of 
^-       the  United  States,  and  those  who  have  declared  their  intention,"  etc. 

, .  ,    -        '  The  statement  of  the  complaint  and  parts  of  the  opinion  are  omitted. 
.-^44*^  K  C    Ai:<;cA*T^i*vl.A>^l  ^-^^X  «Y^  c-^ajU  "fv«M-<-»-i  i^jct^'-^ 


r) 


J  INFANTS   AND   AGENTS.  7Q 

Section  2319.    No  requirement  that  the  citizen  shall  be  of  any  par-  ^'w©-!' 
ticular  age  is  expressed ;  and,  unless  we  are  prepared  to  affirm  thaKJ  *'  '     ' 
minors  are  not  citizens,  we  do  not  see  how  we  can  say  that  they  are  -J 
not  entitled  to  the  benefit  of  the  act.    This  conclusion  is  strength- 
^^^"ened  by  the  circumstance  that  in  some  instances  the  statute  expressly"^   ' 

J,    requires  that  the  citizen  shall  be  of  age.   Thus,  in  reference  to  coal  Wa,  C- 
^*^  lands,  the  provision  is  that  "every  person  above  the  age  of  twenty-one  •»/-■> 
"C     years  who  is  a  citizen  of  the  United  States,"  etc.    Section  2347.    So     ^^jJ^ 
M^    with  reference  to  homesteads  the  provision  is  that  "every  person*^  *Jii^^ 
^    *    *    *    Qygj.  |-hg  ^gg  Qf  twenty-one  years,  and  a  citizen,"  etc.   Sec-  t>t/tt>' 
tion  2259.    The  expression  of  a  requirement  as  to  age  in  some  in-y» 
.    stances,  and  the  omission  of  it  in  others,  is  significant.    Nor  is  there'^''*''*^ 
»»''k^*^iny  reason  in  the  nature  of  things  why  a  minor  may  not  make  a  valid  WMS|b^ 
J'      location.    After  the  preliminary  steps  are  taken,  all  that  is  required  isAf 

.  that  a  certain  amount  of  work  shall  be  done.  If  the  minor  can  do  it,  or '^'"**^ 
!^  *  can  get  any  one  to  do  it  for  him,  the  condition  imposed  by  the  statute  ^^'7^> 
/      is  fulfilled.    If  he  cannot,  his  claim  lapses,  and  the  mine  is  open  to  lo-  •■  v,  ^^ 
I     cation  by  others.    It  may  be  added  that,  so  far  as  we  know,  it  is  the  ^^^ 
*       practice,  in  many  mining  communities,  for  minors  to  locate  claims.     'Cc  ^-^-^ 
•iv     Did  the  father's  want  of  authority  from  his  children  invalidate  the^^^-^-j 
notice  as  to  them?   He  testified  as  follows:   "I  had  no  power  of  at-^'f*'*'^ 
J     torney  to  sign  the  notice  for  my  children,  nor  to  authorize  Mr.  Price  'H.a.w^ 
^^  to  sign  their  names.   None  of  them  gave  me  or  him  authority  to  sign  Li  in>*^ 
1^^  their  names.     *     *     *     i  acted  for  them,  but  without  their  knowl-     ' 
L     edge,   until   after  their   names   were   signed,   notice   recorded  and   |4«-t*v 
^     posted."   Unless  there  is  an  implication  from  the  foregoing  that  he  X^,^    j 

acted  with  their  knowledge  after  their  names  were  signed,  etc.,  it  ^7  i 
^>  does  not  appear  that  there  was  any  ratification  by  all  the  children,  Cc^  , 
»      except  the  bringing  of  the  suit.  ^tvsj^-A 

It  canngt  be  doubted  that  the  location  of  a  mining  claim  may  be  .   '• 

f^    made  by  agent,   {Gore  v.  McBrayer,  18  Cal.  587);  and  wherever  ^"^ 
■M.   there  is  a  local  custom  to  that  efifect,  it  is  not  necessary  that  the  per-  ;,  ,  t''\ 
A  son  in  whose  name  a  location  is  made  should  be  aware  that  it  has  .  ..      ,  > 
s  been  made,  {Morton  v.  Solamho  Co.,  26  Cal.  534).  In  the  absence  of  '^  ^     ' 
*H  evidence  of  such  a  custom,  we  think  that  there  must  be  either  author-  h/LjI^m^ 
— ^  ity  in  the  first  instance  or  a  ratification.    Whether  a  ratification  will  ^^,.,^^  j 
be  presumed,  in  accordance  with  what  is  said  in  Gore  v.  McBrayer,  j^^i 
above  cited,  and  whether,  if  presumed  or  proven,  it  will  relate  back  ^ 
to  the  posting,  so  as  to  cut  ofif  intervening  rights  (compare  Hibherd  <5*'v/^.  *  ^ 
V.  Smith,  67  Cal.  547,  4  Pac.  Rep.  473,  8  Pac.  Rep.  46),  need  not  be  y^^^CcJ 
decided ;  for  the  bringing  of  the  suit,  which  must  be  taken  to  have        ^%it^ 
been  by  authority,  is  a  sufficient  ratification  ;  and,  as  far  as  the  record     *   ^       ' 
goes,  we  cannot  know  that  there  were  any  intervening  rights, — the  /  *  ^   "^i 
assertions  in  the  answer  being  denied  by  force  of  the  statute,  and  the  iA"^  *  «^ 
defendant  not  having  introduced  any  evidence.     *     *     *  1  1 

We  therefore  advise  that  the  judgment  be  reversed,  and  the  cause  '•^'i'-**^ 
remanded  for  a  new  trial.  i'i^^iiJM   1  ^    K  ^^-*- 


80  WHO    MAY   AND   WHO    MAY    NOT   LOCATE. 

^  *-    By  the  Court. — For  the  reasons  given  in  the  foregoing-  opinion 
"^''''''^^'^  the  judgment  is  reversed,  and  cause  remanded  for  a  new  trial.* 


<  A. 


1>J-'.',"lly-  ■  —  _.-N-^-  ''-^'r*i 


^^a^^ 


«M 


DUNLAP  ET  AL.  V.  PATTISON.         ^  .A^  .- 
1895.     Supreme  Court  of  Idaho.     4  Idaho  473,  42  Pac.  504.      *■     1 


ight]  by  Rufus  E.  Dunlap   i^h 
and  Archibald  Smith  against  Moses  Pattison.    Judgment  for  plain-       L 


Action  [in  support  of  an  adverse  brouj 

dxid  Archibald  Smith  against  Moses  Pattic^n.    j  u^shh-hl  iwi  pidm-       v- 

tiffs,  and  defendant  appeals.   Reversed.  CV  1^ 

Morgan,  C.  J.^ —  *     *     *     Thereupon  the  appellant  offered  in  nco/" 

evidence  a  location  notice,  which  was  identified  as  the  location  notice  t/>-C 

of  claim  No.  9,  which  said  notice  was  excluded  by  the  court,  for  the  ^^(Cv\ 

reason  that  the  claim  was  located  in  the  name  of  John  K.  Waite  by  ,i_^ 

Moses  Pattison,  his  attorney  in  fact,  and  was  sworn  to  by  Moses  ''^^ 

Pattison,  instead  of  John  K.  Waite,  the  locator  named  in  the  notice ;  jT^ 

the  court  holding  that  nobody  but  one  of  the  locators  could  make  the  ^i/C^ 

'fj..  /      affidavit ;  that,  in  the  case  before  the  court,  John  K.  Waite  was  the    -^ 

^  .'-^      locator,  and  the  only  locator.     *     *     *  A^'^^ 

^^  Section  3104  of  the  Revised  Statutes  of  Idaho  provides  that  "at  ^  )  K 

s    fr''      the  time  of  presenting  a  notice  of  location  for  record,  or  within  five    ' 

/  L^      days  thereafter,  one  of  the  locators  named  in  the  same  must  make  and'^'^t^ 

subscribe  an  affidavit  in  writing  on  or  attached  to  the  notice,  in  the  ^ 

-  -^'       following  form,  to  wit :    'I,  ,  do  solemnly  swear  that  I  am  ac-  ^^ 

quainted  with  the  mining  ground  described  in  the  notice  of  location  ^  ^^"^ 

herewith,  called  the ledge ;  that  the  same  has  not  to  the  best  of  ^-iJf^ 

my  knowledge  and  belief  been  before  located  according  to  the  laws 
*JL,  ' ,  of  the  United  States  and  this  territory,  or,  if  so  located,  that  the 
p        same  has  been  abandoned  or  forfeited,'  "  etc. 

J  It  is  contended  on  the  part  of  appellant  that  the  construction  by 

j^y^       the  court  of  the  literal  language  of  the  statute,  requiring  one  of  the 
^..^        locators  named  in  the  notice  to  make  the  foregoing  affidavit,  is  too 
If'-^'^V  narrow.    In  the  case  of  Schultz  v.  Keeler,  13  Pac.  481,  this  court 
^  k«*(     held  that  a  valid  location  of  a  mining  claim  could  be  made  through 
\*    an  agent;  and  in  Gore  v.  McBrayer,  18  Cal.  587,  the  court  holds  that 
■^  "it  is  not  necessary  that  a  party  should  act  personally  in  taking  up  a 
"1.^      claim,  or  in  doing  the  acts  required  to  give  evidence  of  the  appro- 
priation, or  to  perfect  appropriation ;  and  that  such  acts  are  valid  if 
' ,        done  by  any  one  for  him  or  with  his  assent  or  approval,  and  assent 

L^^  2  (•■     '  "Where  a  minor  old  enough  to  prospect  and  work  locates  a  claim  we  do  not  I 

see  why  his  minority  should  invalidate  his  title,  but  the  use  of  the  names  of  PjT 
minor  children  to  obstruct  creditors  or  for  other  sinister  purpose  should  cer-l 
tainly  be  unable  to  resist  attack  in  proper  form."    Morrison's  Mining  Rights,! 
14  ed.,  70.  I 

"  Parts  of  the  opinion  are  omitted.  ,^  ,        ^.^ 


\^ 


^'v 


f\^^Jt)>^  t,%ry<^^ 


INFANTS   AND   AGENTS.  8l    ^V\  I  i^S^ 

will  be  presumed."   In  the  above  case  the  notice  contained  the  name  i-*'-tV/ 
of  the  locator,  as  well  as  those  for  whom  location  was  made.    In   ^ 
Morton  v.  Mining  Co.,  26  Cal.  530,  the  court  holds  that  a  person  may- 
locate  a  mining  claim  in  the  name  of  himself  and  others  named  in  .^ 
the  notice  of  location,  and,  when  so  located,  title  will  be  good  in  the  "^ 
others  not  present  and  having  no  notice  of  the  location.   One  of  sev-  -^ 

eral  co-locators  of  a  mining  claim  may  cause  a  notice  of  a  mining  — *" 

claim  to  be  recorded  in  the  name  of  himself  and  others  not  present, 
and  the  location  will  be  good.    Kramer  v.  Settle,  i  Idaho,  485.    It 
will  also  be  seen  that  section  3101,  Rev.  St.,  provides  that  the  locator 
of  any  lode  mining  claim  must,  at  the  time  of  making  the  location, 
place  a  substantial  stake  or  post,  not  less  than  four  inches  square, 
etc. ;  and  yet  this  and  every  other  act  necessary  to  be  done  by  the 
locator  to  make  a  valid  location  may  be  done  by  an  agent,  although 
the  statute  distinctly  states  that  the  locator  must  do  these  things. 
Further,  the  statute  provides  that  the  recorder  must  record  the  claims, 
and  yet  the  recorder  may  do  this  by  his  deputy  or  agent,  or  by  a  mere 
clerk  in  the  office,  although  the  clerk  may  have  neither  power  of  at- 
torney to  act,  nor  even  written  authority  of  any  kind,  nor  is  it  neces- 
sary that  he  be  a  sworn  officer,  and  his  acts  are  as  valid  as  if  per- 
formed by  the  recorder  himself.    The  courts  have  repeatedly  held 
that  claim's  may  be  located  by  an  agent,  as  well  as  by  the  principal. 
There  would  seem  to  be  no  reason  why  this  affidavit  might  not  be  as 
well  made  by  the  agent  as  by  the  principal;  in  fact  better,  as,  in 
case  the  claim  was  located  by  an  agent,  he  would  be  the  person  ac- 
quainted with  the  facts  necessary  to  be  stated  in  the  affidavit, — as 
"that  he  was  acquainted  with  the  mining  ground  described,  that  it 
had  not  been  theretofore  located,  or  that  it  had  been  abandoned."   If 
the  person  named  in  the  notice  must,  of  necessity,  make  the  affidavit, 
then  such  person  must,  before  completing  the  location,  go  upon  the 
ground  in  person  to  acquaint  himself  with  the  facts  necessary  to  be 
stated  in  the  affidavit.    It  is,  and  was  when  this  law  was  passed,  a 
well-known  custom  of  the  country  to  employ  prospectors  to  go  into 
the  mountainous  country  and_ search  for  mines.  These  men  ordinarily 
had  no  money,  and  money,  provisions,  horses,  tools,  and  supplies  of 
every  kind  were  furnished  by  men  who  had  the  means  to  do  so,  but 
could  not  themselves  go ;  but,  if  they  must  go  to  make  this  affidavit, 
then  they  might  as  well  do  the  work.    It  will  be  seen  that  the  nar- 
row construction  of  this  statute  contended  for  would  at  once  destroy 
the  whole   business   of  outfitting  men  to  prospect  for  mines,   by 
which  means  probably  three-fourths  of  all  the  mines  in  the  country 
were  discovered.    If  the  prospector  inserts  his  own  name  in  the  no- 
tice of  location  as  one  of  the  locators,  wherein  does  that  change  his 
relation  to  the  others  named  in  the  notice?   He  must  make  the  affi- 
davit for  them,  as  well  as  himself.   If  he  can  do  this,  why  can  he  not 
make  it  wholly  for  them  ?  The  main  thing  required  by  the  legislature 
(section  3104)  is  an  affidavit  that  the  party  making  it  is  acquainted 

6 — ^Mining  Law 


-•/ 


hl<^t<*"^  ' '  "■  f--vU^  KU  .t,^^v\t^^^-^•• 

82  WHO    MAY   AND    WHO    MAY    NOT    LOCATE. 

with  the  mining  ground,  that  it  has  not  been  located,  or,  if  located, 
has  been  abandoned.  These  are  the  important  facts.  _  Who  makes 
the  affidavit  is  not  important,  so  he  is  acquainted  with  the  facts. 


We  think  the  construction  given  to  the  statute  by  the  court  below 

was  never  intended  by  the  legislature,  and  that,  as  the  location  may 

r  ^        be  made  as  well  by  the  agent  or  attorney  in  fact  of  the  locator,  so 

^  every  act  necessary  thereto  may  also  be  performed  by  such  agent  or 

attorney,  if  the  facts  required  are  within  his  knowledge.   Of  course, 

^.     J  the  agency  must  be  shown  by  sufficient  evidence.    Judgment  and 

'*'    decree  reversed.    Costs  awarded  to  appellant. 


.t\  ■  Section  4. — United    States    Mineral    Surveyors    and    Other    Officers, 
Clerks  and  Employees  in  the  General  Land  Office. 

^  ^^  ,  '  VVKji*^         WASKEY  ET  AL.  V.  HAMMER  et  al. 

■     £«^     1912.     Supreme  Court  of  the  United  States. 
^\      T'  223  U.  S.  85,  32  Sup.  Ct.  187. 


^  Mr.  Justice  Van  Devanter  delivered  the  opinion  of  the  court : 

»~^.  •  This  was  an  action  of  ejectment,  the  subject-matter  of  which  was 
lu  ,  the  overlapping  portions  of  two  placer  mining  claims  in  Alaska,  one 
^^  known  as  the  Golden  Bull  and  the  other  as  the  Bon  Voyage.  The 
*0  i  plaintiffs  claimed  the  area  in  conflict  as  part  of  the  Golden  Bull,  and 
13^:     the  defendants  claimed  it  as  part  of  the  Bon  Voyage.   The  facts,  as 

.  they  must  be  accepted  for  present  purposes,  are  these: 
!Xi-/  kv^  In  1902  the  Bon  Voyage  was  located  by  J.  Potter  Whittren,  he 
A^o.  having  previously  made  a  discovery  of  placer  gold  within  the  ground 
'^p-T  which  he  included  in  the  claim.  Although  not  intended  to  be  exces- 
'  ^  sive,  the  claim  embraced  a  trifle  more  than  20  acres,  the  maximum 
^^t\i  area  permitted  in  a  location  by  one  person.  In  1903  Whittren,  upon 
VZr  ascertaining  that  fact,  drew  in  two  of  the  boundary  lines  sufficiently 
*^  to  exclude  the  excess,  and  in  doing  so  left  the  point  or  place  of  his 
,  only  prior  mineral  discovery  outside  the  readjusted  lines.  Later  in 
1903,  he  made  a  discovery  of  placer  gold  within  the  lines  as  read- 
justed. At  the  time  of  drawing  in  the  lines  and  making  the  subse- 
quent discovery  he  was  a  United  States  mineral  surveyor,  but  was 
not  such  at  the  time  of  the  original  location.  In  1904  the  Golden 
Bull  was  located  by  B.  Schwartz,  and  included  a  part  of  the  ground 
embraced  in  the  Bon  Voyage.  Neither  claim  was  carried  to  patent 
»  or  entry,  and  when  the  action  was  begun  the  defendants  were  in  pos- 
^^^"^^    session.   The  plaintiffs  other  than  Schwartz  claimed  under  him,  and 


J\/^y*Y, 


A 


,,r^os2,*-      fc-»/^WV*v  SURVEYORS  AND  EMPLOYEES. 

the  defendants  other  than  Whittren  claimed  under  conveyances  from  C*/ttt-<^ 
him,  made  after  1904.  _  "fl  -. .    , 

Upon  the  trial  the  court,  at  the  instance  of  the  plaintiffs,  directed   t^^^,,-    , 
a  verdict  in  their  favor,  substantially  upon  the  following  grounds,    ^  ■ 
taken  collectively:    i.    A  discovery  of  mineral  v^ithin  the  limits  of    -A-' 
a  mining  claim  is  essential  to  its  validity;  2.    The  original  location    ,-\^^ 
of  the  Bon  Voyage  was  invalidated  by  the  readjustment  of  its  lines   \      »-^^ 
whereby  the  point  or  place  of  the  only  prior  discovery  of  mineral  ' 

was  left  without  those  lines;  3.   The  readjusted  location  was  invalid  ^M' 
because,  at  the  time  of  the  discovery  of  mineral  therein,  Whittren,  w^Or*^ 
being  a  United  States  mineral  surveyor,  was  disqualified  to  make  a  ^j^ 

location  under  the  mining  laws.   The  jury  returned  a  verdict  as  di-    _  ' ' 
rected,  judgment  was  entered  thereon,  the  judgment  was  affirmed  C^'-A'^r' 
bv  the  circuit  court  of  appeals  for  the  ninth  circuit  (95  C.  C.  A.  305,  J^^jju) 
170  Fed.  31),  and  the  case  is  here  upon  certiorari  (216  U.  S.  622,    .      p 
54  L.  ed.  641,  30  Sup.  Ct.  Rep.  577).  ^'-^   ^a} 

Conceding  that  the  unintentional  inclusion  of  a  trifle  more  than  jr^ti^ 
20  acres  in  the  Bon  Voyage  as  originally  located  was  an  irregularity  >    i.   (^ 
w^hich  did  not  vitiate  the  location,  but  merely  made  it  necessary  that  ^^     - 
the  excess  be  excluded  when  it  became  known  (Richmond  Min.  Co.  /  .    ^^ 
V.  Rose  114  U.  S.  576,  580,  29  L.  ed.  273,  274,  5  Sup.  Ct.  Rep.  1055 ;  ^ .  .  * 
Mcintosh  V.  Price,  58  C.  C.  A.  136,  121  Fed.  716;  Zimmerman  v.   ^      ,, 
Funchion,  89  C.  C.  A.  53,   161   Fed.  859),  we  come  to  consider  ^;^^ 
whether  the  location  was  invalidated  when,  by  the  readjustment  of  ^jt' 
its  lines,  it  was  left  without  a  mineral  discovery  therein.   The  mining   *w<fr  M 
laws,  Rev.  Stat.  §§  2320,  2329,  U.  S.  Comp.  Stat.  1901,  pp.  1424,  x^^^^^  u 
1432,  make  the  discovery  of  mineral  "within  the  limits  of  the  claim"     y^  *^ 
a  prerequisite  to  the  location  of  a  claim,  whether  lode  or  placer,  the    M  ft**-' 
purpose  being  to  reward  the  discoverer  and  to  prevent  the  location  ^ji^^^jT 
of  land  not  found  to  be  mineral.   A  discovery  without  the  limits_  o^  >"    ^ 
the  claim,  no  matter  what  its  proximity,  does  not  suffice.    In  giving  CO"^?^ 
effect  to  this  restriction,  this  court  said,  in  Gwillim  v.  Donnellan,  YX^>-^ 
115  U.  S.  45,  29  L.  ed.  348,  5  Sup.  Ct.  Rep.  mo,  15  Mor.  Min.  Rep.  :    ,  , 
482,  that  the  loss  of  that  part  of  a  location  which  embraces  the  place    / '■^-M  ' 
of  the  only  discovery  therein  is  "a  loss  of  the  location."    Possibly  c-fft,^-r 
what  was  said  w^ent  beyond  the  necessities  of  that  case,  critically  ^^^^^ 
considered,  but  it  illustrates  what  naturally  would  be  taken  to  be  the  V^     » 
effect  of  the  statute;  and  as  that  view  of  it  has  been  accepted  and  V»^«  ^ 
acted  upon  for  twenty-five  years  by  the  Land  Department  and  by  the   To^/J 
courts  in  the  mining  regions,  it  should  not  be  disturbed  now.   It  fol-  ^^  \^J  , 
lows  that  w^hen,  in  1903,  Whittren  excluded  from  the  Bon  Voyage  -^  '  *^ 
the  only  place  at  which  mineral  had  been  discovered  therein,  he  lost  [j^£kAA4 
the  location.   That  his  purpose  was  not  to  give  up  the  location,  but  ^  ^^ 

only  to  eliminate  the  excess  in  area,  is  immaterial,  because,  although 
free  to  exclude  any  other  part  of  the  claim  and  to  retain  that  em-  {^^  %  ' 
bracing  the  discovery,  he  excluded  the  latter,  and  thereby  caused  the       - 
location  to  be  without  a  discovery  within  its  limits.   Possibly,  as  was  ^^^ 


ix.^*J^  J)  k^ii,  ^.   u<  >  -  r\  (^,  i,^sjL^-  urU)  f^  ^ 

.>  ^  n.H  ^-^^^^  ■^?^-  ^  r-c  ^-.>^  fr-A:  'i^^X 

84  WHO   MAY   AND    WHO    MAY    NOT    LOCATE. 

suggested  in  argument,  the  discovery  was  excluded  because  it  was 

not  deemed  sufficiently  promising  to  make  its  retention  advisable, 

but,  however  that  may  have  been,  its  exclusion  defeated  the  location 

'"'"^        and  left  the  lands  therein  "open  to  exploration  and  subject  to  claim 

l£yZ>^^j  for  new  discoveries,"   Ibid. 

r~~     •         As  no  adverse  right  had  intervened  at  the  time  of  Whittren's  sub- 

^  *"  ■    sequent  discovery  of  mineral  within  the  limits  of  the  readjusted  loca- 

,    p.:        tion,  it  must  be  conceded  that  that  location  became  effective  as  of 

that' time,  just  as  if  he  had  then  marked  those  limits  anew  (2  Lind- 

ley.  Mines,  §§  328,  330),  unless  he  was  then  disqualified  to  make  a 

location  by  reason  of  his  having  become  a  United  States  mineral 

•  ••         surveyor ;  and  so  it  is  necessary  to  consider  whether  such  a  surveyor 

/  <■    'f     is  within  the  prohibition  of  Rev.  Stat.  §  452,  U.  S.  Comp.  Stat.  1901, 

•^         '  p.  257,  and,  if  so,  whether  that  prohibition  made  the  readjusted  loca- 

J  C  .      tion  void,  or  only  voidable  at  the  instance  of  the  government.   That 

*i.      section  reads : 
■  '^^  "The  officers,  clerks,  and  employees  in  the  General  Land  Office  are 

prohibited  from  directly  or  indirectly  purchasing  or  becoming  inter-  -p 
, ,  ested  in  the  purchase  of  any  of  the  public  land ;  and  any  person  who  ^ 
violates  this  section  shall  forthwith  be  removed  from  his  office." 
Mineral  surveyors  are  appointed  by  the  surveyor  general  under 
_,  Rev.  Stat.  §  2334,  and  their  field  of  action  is  confined  to  the  survey- 
f    >]"    '^   i"g  of  mining  claims  and  to  matters  incident  thereto.   They  act  only  \  ^ 
^'    ,      at  the  solicitation  of  owners  of  such  claims,  and  are  paid  by  the  own-     -^ 
j-.-s^    gj-s^  jjQJ-  i^y  the  government;  but  their  charges  must  be  within  the 
'   ''^        maximum  fixed  by  the  Commissioner  of  the  General  Land  Of^ce, 
and  their  work  must  be  done  in  conformity  to  regulations  prescribed 
,_^by  that  officer.  They  are  required  to  take  an  oath,  and  to  execute  a 
^"•^^  bond  to  the  United  States,  as  are  many  public  officers.    Within  the 
rp,         limits  of  their  authority  they  act  in  the  stead  of  the  surveyor  general     — 
r    ,         and  under  his  direction,  and'  in  that  sense  are  his  deputies.   The  work     iV 
'  ''    which  they  do  is  the  work  of  the  government,  and  the  surveys  which    ^^ 
,,   (^  ^     they  make  are  its  surveys.   The  right  performance  of  their  duties  is  /  ^ 
i     A      *pf  real  concern,  not  merely  to  those  at  whose  solicitation  they  act,  but  ^j 
^  /^Iffalso  to  the  owners  of  adjacent  and  conflicting  claims  and  to  the  gov- 
f  v!.!&^' . ''ernment.   Of  the  representatives  of  the  government  who  have  to  do 
with  the  proceedings  incident  to  applications  for  patents  to  mining 
claims,  they  alone  come  in  contact  with  the  land  itself,  and  have  an 
opportunity  to  observe  its  situation  and  character,  and  the  extent  and 
f     .       \  nature  of  the  work  done  and  improvements  made  thereon;  and  it  is 
^   '  upon  their  reports  that  the  surveyor  general  makes  the  certificate  re- 

^^'  '  quired  by  Rev.  Stat.  §  2325,  which  is  a  prerequisite  to  the  issuance, 
of  a  patent.  See  Mining  Regulations  of  July  26,  1901,  paragraphs  90,^ 
*;.•,..  1 15-169,  31  Land  Dec.  474,  489,  493;  Gowdy  v.  Kismet  Gold  Min. 
A  tC-r  Co.  24  Land  Dec.  191,  193.  The  resume  of  their  authority  and  duties, 
r^lWi>~.  and  of  their  relation  to  the  surveyor  general  and  the  General  Land 
A  l^  'Uf    Office,  satisfies  us  that  they  are  within  the  prohibition  of  §  452.  That 


F'^^tc-J^  u-^   Wv^^'^L  u  f'KrM*-)'' tn^A  V/sc.  ri..';' .       rj    f 

4^  ,   tf-MnV^  SURVEYORS   AND   EMPLOYEES.  '  85  ' 

prohibition  is  addressed  not  merely  to  the  officers  of  the  General   ^«f  H 
Land  Office,  or  to  its  officers  and  clerks,  but  to  its  "officers,  clerks,    ♦  j»  -i 
and  employees."   These  words,  taken  collectively,  are  very  compre-      "  ^^ 
hensive,  and  easily  embrace  all  persons  holding  positions  under  that  CtS"^ 
office  and  participating  in  the  work  assigned  to  it,  as  is  the  case  with    ^        ? 
^mineral  surveyors.  The  purpose  of  the  prohibition  is  to  guard  against   ^'^vvO^ 
•the. temptations  and  partiahty  likely  to  attend  efforts  to  acquire  pub-  >  ^--j,.?." 
^^  ]lic  lands,  or  interests  therein,  by  persons  so  situated,  and  thereby  to 
'^    prevent  abuse  and  inspire  confidence  in  the  administration  of  the  *  1^  !t  * 
:public-land  laws.    So  understanding  the  letter  and  purpose  of  the  j .  v^y^ ; 
j  prohibition,  we  think  it  embraces  the  location  of  a  mining  claim  by 
j  a  mineral  surveyor.   True,  it  is  addressed  to  officers,  clerks,  and  em-  ''*'*1f^ 
ployees  "in  the  General  Land  Office,"  and  is  directed  against  "the  ^  U'ftj 
purchase  of  any  of  the  public  land"  by  them;  but  in  view  of  the  ter-  % 

minology  common  to  public-land  legislation,  we  think  the  reference      "^^^ 
to  the  General  Land  Office  is  inclusive  of  the  subordinate  offices  or   t-!^.Tf'» 
branches  maintained  under  its  supervision,  such  as  the  offices  of  the   . ,   .  / 
surveyors-general  and  the  local  land  offices,  and  that  the  term  "pur-     ^ 
chase"  is  inclusive  of  the  various  modes  of  securing  title  to  or  rights  « 4  U*-^ 
in  public  lands  under  the  general  laws  regulating  their  disposal.  ]#&»>' 

That  the  construction  which  we  here  place  upon  §  452  is  the  one  ^^ 
prevailing  in  the  Land  Department  is  shown  in  its  circular  of  Septem- 
ber 15,  1890,  II  Land  Dec.  348,  wherein  it  is  said:    "All  officers,  ^,  , ., 
clerks,  and  employees  in  the  offices  of  the  surveyors  general,  the  lo-  ^. 
cal  land  offices,  and  the  General  Land  Office,  or  any  persons,  wher-  ^"■-   '  ^ 
ever  located,  employed  under  the  supervision  of  the  Commissioner  ^tJit,  '-■. 
of  the  General  Land  Office,  are,  during  such  employment,  prohibited  ^ 
from  entering  or  becoming  interested,  directly  or  indirectly,  in  any  '''''  "^ '"  "■ 
of  the  public  lands  of  the  United  States."    The  published  decisions  t  [*"  ^ 
of  .the  Secretary  of  the  Interior,  although  disclosing  instances  in  1  .       \ 
which    that    construction    has    been    departed    from    or    doubted  ^  ^^^"^^ 
(Dennison  and  Willets,  11  Copp's  L.  O.  261;  Lock  Lode,  6  Land  M*" 
Dec.   105;  Re  Leffingwell,  30  Land  Dec.   139),  show  that  in  the 
main  it  has  been  closely  followed  (Re  McMicken,  10  Land  Dec.  97, 
and  II  Land  Dec.  96;  Muller  v.  Coleman,  18  Land  Dec.  394;  Re.  ^.  v..  S^ 
Neill,  24  Land  Dec.  393  ;  Floyd  v.  Montgomery,  26  Land  Dec.  122,  ^^.^O 
136;  Re  Maxwell,  29  Land  Dec.  76;  Re  Baltzell,  29  Land  Dec.  333;  J  * 

Re  Bradford,  36  Land  Dec.  61).  Vm."^ 

In  principle,  the  recent  case  of  Prosser  v.  Finn,  208  U.  S.  67,  52  .       i    ■• 
L.  ed.  392,  28  Sup.  Ct.  Rep.  225,  goes  far  to  sustain  the  view  here  ^^'^*^  ' 
expressed.   There  a  special  agent  of  the  General  Land  Office,  whose  b^i^ 
field  of  duty  was  in  the  state  of  Washington,  made  an  entry  of  pub-    1 
lie  land  under  the  timber-culture  law,  and  thereafter  in  all  respects   P  ^'^' 
complied  with  that  law.    But  it  was  held  by  this  court  that  he  was,  -l-i  ,  ^ 
in  every  substantial  sense,  an  employee  in  the  General  Land  Office, 
and  therefore  was  within  the  prohibition  of  §  452. 

The  general  rule  of  law  is  that  an  act  done  in  violation  of  a  statu-    ^      '■  ■ 


86  WHO    MAY   AND    WHO    MAY    NOT    LOCATE. 


^^  tory  prohibition  is  void  and  confers  no  right  upon  the  wrongdoer; 

a--5  but  this  rule  is  subject  to  the  qualification  that  when,  upon  a  survey 

tA^,,-Q  of  the  statute,  its  subject-matter  and  the  mischief  sought  to  be  pre- 

^  \  "7  vented,  it  appears  that  the  legislature  intended  otherwise,  effect  must 

^^^^  '  be  given  to  that  intention.   Miller  v.  Ammon,  145  U.  S.  421,  426,  36 

ifC^,.  L.  ed.  759,  762,  12  Sup.  Ct.  Rep.  884;  Burck  v.  Taylor,  152  U.  S. 

f.  1  634,  649,  38  L.  ed.  578,  583,  14  Sup.  Ct.  Rep.  696;  Connolly  v.  Union 

•^^  Sewer  Pipe  Co.  184  U.  S.  540,  54^,  46  L.  ed.  679,  685,  22  Sup.  Ct. 

g  C^  Rep.  431.    Here  we  think  the  general  rule  appHes.    The  acts  de- 

I  scribed  in  §  452  are  expressly  prohibited  under  penalty  of  dismissal. 

^  '  There  is  in  its  language  nothing  indicating  that  its  scope  is  to  be 

\  '_.  confined  to  the  exaction  of  that  penalty  (Prosser  v.  Finn,  supra),  or 

^  "'v '  that  acts  done  in  violation  of  it  are  to  be  valid  against  all  but  the 
CC-^->  ■•  government.    Nor  is  there  anything  in  its  subject-matter  or  in  the 

^^^^  mischief  sought  to  be  prevented  which  militates  against  the  applica- 

^^fj  tion  of  the  general  rule.   On  the  contrary,  it  is  reasonably  inferable, 

p'VTTy'-  from  the  language  of  the  section  and  the  situation  with  which  it 

#^  deals,  that  it  is  intended  that  violations  of  it  shall  be  attended  by  the 

'  ^^  ordinary  consequences  of  unlawful  acts.    We  therefore  are  of  opin- 

'„0^y<s,  •  ion  that  the  readjusted  location  was  void. 
Affirmed.  1° 

r—  Section  5. — Accommodation  Locators. 

.RIVERSIDE  SAND  &  CEMENT  MFG.  CO.  v.  HARDWICK 
,  {s>u«^  ET  AL.  (two  cases). 

T^  F  191 1.     Supreme  Court  of  New  Mexico.     120  Pac.  323. 

J^  Parker,   J.^^ — The   Riverside    Sand   &   Cement   Manufacturmg 

Company,  appellee,  brought  an  action  of  ejectment  to  recover  the 
possession  of  a  placer  mining  claim,  called  the  "Chief ton  No.  i,"  re- 
sulting in  a  verdict  and  judgment  for  the  possession  of  only  a  por- 
,.,      tion  of  the  same.   The  appellants,  Eugene  F.  Hardwick  and  others, 
VV  ■•     the  defendants  below,  took  an  appeal  to  this  court.   The  plaintiff  be- 
''      Tow  and  appellee  here  also  sued  out  a  cross-appeal  from  the  judg- 
ment.   Both  of  these  appeals  will  be  considered  together.     *     *     * 
[7]  5.    In  the  tenth  assignment,  it  is  urged  that,  because  when  the 
Chiefton  No.    i   was  located  a  portion  of  the  ground  was  being 
''  worked  by  other  persons,  the  location  was  therefore  unwarranted. 
The  principle  that  no  valid  location  can  be  made  of  land  in  the  actual 


t'V'lA'  "• 


'      "  The  question  is  one  of  the  effect  of  the  illegality.    It  is  believed  that  a  de- 
l.*L#//v  cision  estabHshing  a  rule  like  that  applicable  to  locations  by  aliens  is  needed 
r^V        for  the  protection  of  innocent  purchasers  and  would  be  more  in  accord  with 
ItTVCt      the  spirit  of  the  American  mining  law. 
^^  Parts  of  the  opinion  are  omitted. 


^"^^''^^   U^4v.yV^    ,  ACCOMMODATION    LOCATORS.  8?  ,^v^V5 

adverse  possession  of  another  is  invoked,  and  the  principle  is  not  UO-^l 

disputed  by  counsel  for  appellee.    It  does  not  appear,  however,  that 

the  entry  was  by  way  of  intrusion  upon  the  actual  possession  of  an-  -'"^^^^ 


other.    Who  and  what  these  persons  were  who  were  working  the ; . 
ground,  whether  they  made  any  claim  to  the  same,  or  had  any  rights 


therein,  does  not  appear.   The  location  of  appellants  bears  no  rela-  j 
tion  to  them  or  other  persons  on  the  ground,  so  far  as  appears.  Un-I^.       Ij^ 
der  such  circumstances,  the  principle  invoked  can  have  no  applica-l 
tion.     *     *     *  ^^ 

[9]  7.    Appellee,  upon  its  cross-appeal,  complains  of  the  rulings 
and  instructions  of  the  court  which  permitted  appellants  to  submit ^"'**^ 
to  the  jury  the  question  as  to  whether  two  of  the  locators  of  the^y^ 
Chiefton  No.  i  placer  claim,  under  which  appellee  claims,  were  not 
mere  accommodation  locators,  having  no  interest  in  the  location,  and  ^^* 
conveying  without  consideration  to  the  appellee.    The  objection  isr  . 
based  upon  two  grounds :   First,  it  is  urged  that  such  an  issue  is  not  ^^^^ 
within  the  pleadings ;  and,  second,  that  the  fact,  if  true,  of  the  useC**-^ 
of  two  persons  as  "dummies"  in  the  location  of  the  Chiefton  No.  i  i^vA 
is  not  available  to  appellants,  and  is  a  matter  in  which  the  govern- 
ment alone  is  interested,  and  of  which  it  alone  can  take  advantage.  fi^^-^J 
Appellants  seek  to  justify  the  action  of  the  court  in  submitting  the*^    '  J 
question  to  the  jury  upon  the  authority  of  Durant  v.  Corbin  (C.  C.),^^**^ 
94  Fed.  382;  Gird  v.  Cal.  Oil  Co.  (C.  C.)  60  Fed.  531,  and  Mitchell'  f  t...i 
"     V.  Cline,  84  Cal.  409,  24  Pac.  164.   In  the  first  two  cases,  there  was^ 
—'    an  application  for  patent,  and  the  actions  were  in  support  of  adverse  v^fj  O-  ^ 
;    claims.   This  fact,  doubtless,  was  overlooked  by  the  trial  court,  and*  . 

the  distinction  between  that  class  of  cases  and  ordinary  contests  be-'S.<!^^ 
tween  individuals  was  overlooked.    The  case  of  Mitchell  v.  Clinej^  ,jms. 
supra,  was  a  case  where,  after  a  patent,  a  suit  for  partition  was  in-^^^'"; 
stituted,  and  it  was  sought  to  charge  one  of  the  entrymen,  as  truste^DA-V^ 
for  the  benefit  of  the  others,  as  to  a  portion  of  the  title.   The  court 
held  that,  as  all  of  the  entrymen  had  perpetrated  a  fraud  upon  the '*»*-*• 
government  by  the  use  of  "dummies"  in  making  the  location,  a  court^;^___^  ^ 
of  equity  would  refuse  relief,  and  would  leave  the  parties  where  it  , 

found  them,  all  in  accordance  with  a  well-recognized  equitable  prin-^'  £4^  ' 
ciple.   This  case,  as  well  as  the  case  of  Gird  v.  Cal.  Oil  Co.,  supra,  -  ^  Ay 
and  many  other  cases,  point  out  that  the  fraud  of  locating  by  means . 
of  dummies  is  a  fraud  upon  the  government,  and  not  upon  the  citi-'      /  ^ 
zen  who  might  wish  to  locate.    The,  Jraud  being  a  fraud  upon  tUe/  JV^i 
jt}  government,  it  would  seem  clear  that  the  government  alone  can  corn^ 
'j  plaiji.   I  Lindley  on  Mines,  §  450.  The  question  as  to  how  advantage  ^\-m.  \ 
L  can  be  taken  of  the  disqualification  of  a  locator  has  often  arisen  in  ft        . 
connection  with  locations  by  aliens.   Some  earHer  cases  admitted  the  1^*"^ 
relevancy  of  the  question  of  citizenship,  but  the  law  has  been  finally  » ■    r^ 
settled  that  the  government  alone  is  concerned,  and  the  same  is  not  f.  ^^  ^ 
relevant  in  a  contest  between  individuals,  except  in  adverse  proceed-  '  »  ^ 
ings,  wherein  the  government  is  a  silent  party,    i  Lindley  on  Mines,  \^^^ 


88  WHO    MAY    AND    WHO    MAY    NOT    LOCATE. 

§  234;  McKinley  Creek  Mining  Co.  v.  Alaska  Un.  Co.,  183  U.  S. 
563,  22  Sup.  Ct.  84,  46  L.  ed.  331 ;  Tornanses  v.  Melsing,  109  Fed. 
710,  47  C.  C.  A.  596;  Wilson  v.  Triumph  Co.,  19  Utah,  66,  56  Pac. 
300,  75  Am.  St.  Rep.  716.  It  follows  that  the  trial  court  was  in  error 
in  submitting  to  the  jury  the  question  of  the  qualification  of  the  lo- 
lators  of  the  Chief  ton  No.  i. 

Appellee  moved  for  judgment  non  obstante  veredicto,  which  should 
have  been  granted.  This  court,  however,  has  the  power  to  enter 
judgment,  and  the  same  will  now  be  entered  for  the  possession  of 
all  of  the  Chiefton  No.  i  placer  mining  claim,  as  described  in  the 
record.  And  it  is  so  ordered.^ ^ 

^"  But  see  Cook  v.  Klonos,  164  Fed.  529  and  Nome  &  Sinook  Co.  v.  Snyder, 
187  Fed.  385. 

In  Cook  V.  Klonos,  164  Fed.  529,  which  was  a  suit  to  quiet  title  to  a  group 
placer  mining  claim,  and  for  an  injunction,  Morrow  Circuit  Judge,  for  the 
court,  pointed  out  that  "the  prohibition  contained  in  section  2331  [Rev.  St. 
U.  S.]  against  the  location  of  'more  than  twenty  acres  for  each  individual 
claimant,'  is  direct  and  positive,  and  limits  the  amount  of  ground  that  any  one 
claimant  may  appropriate,  either  individually  or  in  association  claim,  at  the 
time  of  the  location"  (164  Fed.  537),  and  concluded: 

"The  scheme  of  using  the  names  of  dummy  locators  in  making  the  location 
of  a  mining  claim  for  the  purpose  of  securing  a  concealed  interest  in  such 
claim  appears  to  be  contrary  to  the  purpose  of  the  statute ;  but  when  this 
scheme  is  used  to  secure  an  interest  in  a  claim  for  a  single  individual,  not 
only  concealed  but  [because  an  undivided  half  interest  in  the  120-acre  placer 
claim  is  really  equivalent  to  60  acres  of  it],  in  excess  of  the  limit  of  20  acres, 
[allowed  to  any  one  locator],  it  is  plainly  in  violation  of  the  letter  of  the  law,  -jfc 
and  when,  as  in  this  case,  all  the  locators  had  knowledge  of  the  concealed  in- 
terest and  were  parties  to  the  transaction,  it  renders  the  location  void."  (164 
Fed.  538-539.) 

In  Nome  &  Sinook  Co.  v.   Snyder,  187  Fed.  385,  which  was  an  action  of 
ejectment  in  support  of  an  adverse,  Wolverton,  District  Judge,  for  the  court,    T' 
said : 

"Any  scheme  or  device  entered  into  whereby  one  individual  is  to  acquire 
more  than  that  amount  or  proportion  in  area  constitutes  a  fraud  upon  the  law 
and  consequently  a  fraud  upon  the  government,  from  which  the  title  is  to  be 
acquired,  and  any  location  made  in  pursuance  of  such  a  scheme  or  device  is 
without  legal  support  and  void.     *     *     * 

"Now,  in  the  case  under  review,  the  very  articles  of  agreement  put  the  claim- 
ant beyond  the  pale  of  the  law,  while  the  testimony  establishes  the  illegality  of 
the  scheme  beyond  peradventure.  The  location,  although  made  in  the  name  of 
the  association,  two  of  the  parties  thereto  were  to  have  but  a  nominal  interest 
in  the  claim,  one  less  than  one-fifth,  one  largely  more  than  one-fifth,  and  one 
more  than  one-half,  giving  the  latter,  of  course,  more  than  50  acres  propor- 
tionately in  the  claim.  So  that,  regardless  of  the  discovery,  regardless  of  the 
marking  on  the  ground,  or  even  the  assessment  work,  the  claim  was  void,  and 
could  not  avail  the  locators  in  any  stage.  The  location  being  void,  the  ground 
remained  as  if  none  had  been  made,  and  was  unappropriated  mineral  land, 
subject  to  location  by  others."     (187  Fed.  388,  389.) 

See  note  10,  ante. 


THE  DISCOVERY  OF  LODE  AND  PLACER  CLAIMS.    \^,A^,^j*lMldM   j/^ 


FEDERAL  STATUTE.  Oi/V^^  I  ^^ 

Sec.  2320.    *    *     *     -q^^  no  location  of  a  mining  claim  shall  be  niai[le„lffitil 
the  discovery  of  the  vein  orlode  withinlhe  limits  of  the  claim  located.  *  *  *     J,,^^^,^^^^^^^ 


Section  1.— Rights  Prior  to  Discovery.      (^^  l/^HT  ^A<^  '^^f  ^^ 


vW 


f-«^>-*^    -.         ERHARDT  V.  BOARO  AND  OTHERS.   '\'J<.»>«r  t^uuO  Wn 

1   *:     IW^M  "1885.     Supreme  Court  of  the  United  States.         ^V         ^    q 
^^AA  tr^,       in  U.  S.  527,  28  L.  ed.  11 13,  5  Sup.  Ct.  560.     V-vwvfty  »      t 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District  ^^. 
^  *  of  Colorado.  ^ 

1         This  is  an  action  for  the  possession  of  a  mining  claim  in  Pioneer  €t«<, 
mining  district,  in  the  county  of  Dolores,  and  state  of  Colorado.  The  ^^^^  ^^ 
claim  is  designated  by  the  plaintiff  as  "The  Hawk  Lode"  mining 
claim,  ancl  bv  the  defendants  as  "The  Johnny  Bull  Lode"  mining 
claim.   The  plaintiff  is  a  citizen  of  New  York,  and  the  defendants    , 
are  citizens  of  Colorado.   The  complaint  is  in  the  usual  form  in  ac-    K  ^" 
tions  for  mining  claims  under  the  practice  in  Colorado.     *     *     *   -fetirrS) 

On  the  trial  the  plaintiff  produced  evidence  tending  to  show  that  : - 
on  the  seventeenth  of  June,  1880,  one  Thomas  Carroll,  a  citizen  of  K<   I  ,'-■ 
the  United  States,  while  searching,  on  behalf  of  himself  and  the  ,     ..?• 
plaintiff,  also  a  citizen,  for  valuable  deposits  of  mineral,  discovered,  ^*'^    "^ 
on  vacant  unoccupied  land  of  the  public  domain  of  the  United  States,  |.^,-  '  , 
in  the  Pioneer  mining  district  mentioned,  the  outcrop  of  a  vein  or  .       » 
lode  of  quartz  and  other  rock  bearing  gold  and  silver  in  valuable  and     '     ^^ 
paving  quantities;  that  by  an  agreement  between  him  and  the  plain-   ^^    ^\ 
tiff,  pursuant  to  which  the  explorations  were  prosecuted,  all  lodes    ^  ^ 
and  veins  discovered  by  him  were  to  be  located,  one-fifth  in  his  name      -  -'^'> 


J>p.  90  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS,  / 

*'  and  four-fifths  in  the  name  of  the  plaintiff;  that  on  the  day  of  his  j 

i^^/  discovery  Carroll  designated  the  vein  or  lode  as  the  "Hawk  Lode,"| 

-.^  I  and  posted  at  the  point  of  discovery  a  plain  sign,  or  notice  in  writ; 

irr  ing.  as  follows :  /-""^  , 

^tif'^t^^C^^     ''Hawk  Lode.  ^l-^^^  ^ 

U*«t"-  "We,  the  undersigned,  claim  1,500  feet  on  this  mineral-bearing  wy4 

,.  \^  lode,  vein,  or  deposit.                                                                                   «^a\ 

jLjp  r    ''Dated  June  17,  1S80.                            Joel  B.  Erhardt,  4-5ths.       Cvn' 

iT^  *^'^-                                                             "Thomas  Carroll,  i-5th." 

'  n^  — That  on  the  same  day,  at  the  point  of  his  discovery,  Carroll  com-   .. 

•^  menced  excavating  a  discovery  shaft,  and  sunk  the  same  to  the  depth    j^ 

j^^T  of  about  eighteen  inches  or  two  feet  on  the  vein ;  that  on  the  thirtieth       y 
"v**^  *  of  the  month,  in  the  temporary  absence  of  himself  and  the  plaintiff,  \'7in 

'^''^''^  the  defendant  Boaro,  with  knowledge  of  the  rights  and  claims  of  the^      u 

■VY  ''  plaintiff  and  Carroll,  entered  upon  and  took  possession  of  their  ex-  '.--'R 

,^^  cavation,  removed  and  threw  away  or  concealed  the  stake  upon  which       ^ 

^  their  written  notice  was  posted,  and,  at  the  point  of  Carroll's  dis-  F  '"  ' 

■*-«-^^  covery  of  the  vein  or  lode,  erected  a  stake  and  posted  thereon  a  dis^  O 

•Cv  covery  and  location  notice  as  follows :                                                 r  ,1'  ^j 

o    ,     ^  '  "Johnny  Bull  Lode. 

"We,  the  undersigned,  claim  1,500  feet  on  this  mineral-bearing 
vein  or  lode,  running  six  hundred  feet  north-east  and  nine  hundred 
■**•  *-^  feet  south-west,  and  150  feet  on  each  side  of  the  same,  with  all  its 
Xl         dips  and  spurs,  angles,  and  variations.  »,  -^  ^ 

D  "/mw^  30,  1880.  ^^i*-"*^'' Anthony  Boaro.       ^% 

H.^U^'  l^v^'^,..     ^     >•  *^  ''W.  L.  Hull."  .^ 

^   ^(T       The  evidence  also  tended  to  show  that  Boaro  and  Hull  entered'Cvt/^ 
l-t/gi^  upon  the  premises  thus  described,  about  July  21,  1880,  and  remained    ^T"- 
^^,    I  thereafter  continuously  in  possession ;  that  threats  of  violence  to  the       '  ' 
"^^       plaintiff  and  Carroll,  if  they  should  enter  upon  the  premises,  or  at-  '  ' 
^-^  '     tempt  to  take  possession  of  them,  were  communicated  to  Carroll  as  '-''/' 
jv^     having  been  made  by  Boaro  early  in  August  following;  that  in  con-  j*-^ 
sequence  of  such  threats,  and  the  possession  held  by  Boaro,  Carroll 
^t^  ^      was  prevented  from  resuming  work  upon  and  completing  the  dis-'^*'^  ' 
l^         covery  shaft,  and  from  entering  upon  any  other  part  of  the  lode  or^-^tr" 
.  .      vein,  and  performing  the  acts  of  location  required  by  law  within  the  ^.„^^>, 
'*'  J       time  limited.   The  evidence  also  tended  to  show  that  within  90  days  '      *, 
feJ^       from  the  discovery  of  the  lode  by  Carroll,  one  French,  on  behalf  o^  •^^^ 
the  plaintiff  and  Carroll,  secretly  caused  the  boundaries  of  the  claimi  j  ^ 
to  be  marked  by  six  substantial  posts,  so  as  to  include  the  place  'of\  0 
»        discovery  and  the  premises  in  controversy,  and  filed  in  the  office  of  1^-^^ 
the  recorder  of  the  county  a  location  certificate  setting  forth  the  namev( 


^.1 


*  RIGHTS'  PRIOR   TO   DISCOVERY.  9I     ^"^ 

of  the  lode,  the  date  of  the  location,  the  names  of  the  plaintiff  and '.,  ;_/^ 
Carroll  as  locators,  and  the  course  of  the  lode  or  vein;  and  giving  «,^ 
such  a  description  of  the  claim,  with  reference  to  natural  objects  and  ^S  S 
permanent  landmarks,  as  would  suffice  to  identify  the  same  with  rea-  4  1/ 
sonable  certainty.  ^  y 

\  The  evidence  offered  by  the  defendants  tended  to  rebut  that  of  the  "■"^.  ^ 

'    ^      plaintiff.     *     *     *  ,^'^, 

The  evidence  being  closed,  the  court  was,  among  other  things,  re-  # 
/-v».     quested  to  instruct  the  jury  that  from  and  after  the  date  of  the  dis-  ^"^-^^ 

covery  by  a  citizen  of  the  United  States,  upon  vacant,  unoccupied  C  X 
h»^     mineral  lands,  of  the  outcrop  of  a  vein  or  body  of  mineral-bearing   f%  . 
^_j.     rock,  the  discoverer  is  entitled  to  the  possession  of  the  point  at  which    '^  ^  t 
^^*"  he  made  his  discovery,  and  of  such  a  reasonable  amount  of  adjacent  Ct/v\ 
ground  as  is  necessary  or  incidental  to  the  proper  prosecution  of  the  i  r-  ft 
'n^.      work  of  opening  up  or  exposing  the  vein  or  body  of  mineral-bearing         '^ 
1^  ^    rock  to  the  depth  and  within  the  time  required  by  law,  and  that  to  ?0  ^ 
such  extent  he  is  protected  by  law  in  his  possession  for  the  period  of  ^  ^ 
6o  days  from  the  date  of  his  discovery.   But  the  court  refused  to  give  ^V     » 
this  instruction,  and  the  plaintiff  excepted  to  the  refusal.   The  court  r*"*-^ 
charged  the  jury,  among  other  things,  that  it  was  in  evidence,  and  L-»^ 
seemed  to  be  conceded,  that  the  notice  on  the  stake  put  up  by  Carroll  l 
contained  no  specification  or  description  of  the  territory  claimed  by  ' 
the  locators,  as  that  they  claimed  a  number  of  feet  on  each  side  of 
the  discovery,  or  in  any  direction  therefrom,  and  "in  this  respect,"  [, 
said  the  court,  "the  notice  was  deficient,  and  under  it  the  locators 
could  not  claim  more  than  the  very  place  in  which  it  was  planted.  ! 
'  Elsewhere  on  the  same  lode  or  vein,  if  it  extended  beyond  the  point ' 
in  controversy,  any  other  citizen  could  make  a  valid  location ;  for  this  ^ 

notice,  specifying  no  bounds  or  limits,  could  not  be  said  to  have  any  \  '  , 
extent  beyond  what  would  be  necessary  for  sinking  a  shaft ;"  and  '^^"^  * 
also,  that  to  entitle  the  plaintiff  to  recover,  "it  should  appear  from'  '•  <-,  t 
the  evidence  that  Boaro  entered  at  the  very  place  which  had  been  ■ 
taken  by  Carroll,  because,  as  Carroll's  notice  failed  to  specify  the      '     '  . 
territory  he  wished  to  take,  it  could  not  refer  to  or  embrace  any  '    !  ' " "" 
other  place  than  that  in  which  it  was  planted,"    To  the  giving  of  iJ' 

these  instructions  the  plaintiff  also  excepted.  The  defendant  obtained   ,  ^     -jj 
a  verdict,  and  to  review  the  judgment  entered  thereon  the  plaintiff  '" 
brings  the  case  here  on  writ  of  error. 

Field,  J.^ — As  seen  by  the  statement  of  the  case,  the  court  below,  ^^^j*  v, 
in  its  charge,  assumed  that  the  notice  on  the  stake,  placed  by  Carroll 
aFThe  point  of  his  discovery,  contained  no  specification  or  description  C*^***^ 
of  the  ground  claimed  by  the  locators,  because  it  did  not  designate  [>^  ^ 
tihe  number  of  feet  claimed  on  each  side  of  that  point,  or  in  any  di-i,^ 
rection  from  it.  The  court  accordingly  instructed  the  jury  that  the'^^J*^ 
nottoTwas  deficient,  and  under  it  the  locators  could  not  claim  any  ; 

^  Parts  of  the  statement  of  facts  are  omitted.     ii§  Q-¥"~p^\)l  ***'*^^' 


M 


H.  f-t-oc  /-vi^-A  ^-^7"^-^  ^  *^'»^^  -^v  f  ^'> tv^  *^*s^; 


92  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS. 

more  than  the  very  place  in  which  the  stake  was  planted,  and  that 
elsewhere  on  the  same  lode  beyond  the  point  of  discovery  any  other 
citizen  could  make  a  valid  location.  In  this  instruction  we  think  the 
court  erred.  The  statute  allows  the  discoverer  of  a  lode  or  vein  to 
locate  a  claim  thereon  to  the  extent  of  1,500  feet.  The  written  notice 
posted  on  the  stake  at  the  point  of  discovery  of  the  lode  or  vein  in 
controversy,  designated  by  the  locators  as  "Hawk  Lode,"  declares 
that  they  claim  1,500  feet  on  the  "lode,  vein,  or  deposit."  It  thus  in- 
formed all  persons,  subsequently  seeking  to  excavate  and  open  the 
lode  or  vein,  that  the  locators  claimed  the  "whole  extent  along  its 
course  which  the  law  permitted  them  to  take.  It  is,  indeed,  indefinite 
in  not  stating  the  number  of  feet  claimed  on  each  side  of  the  dis- 
covery point ;  and  must,  therefore,  be  limited  to  an  equal  number  on 
each  side ;  that  is,  to  750  feet  on  the  course  of  the  lode  or  vein  in 
each  direction  from  that  point.  To  that  extent,  as  a  notice  of  dis- 
covery and  original  location,  it  is  sufficient.  Greater  particularity  of 
description  of  a  location  of  a  mining  claim  on  a  lode  or  vein  could 
seldom  be  given  until  subsequent  excavations  have  disclosed  the 
course  of  the  latter.  These  excavations  are  to  be  made  within  60 
days  after  the  discovery.  Then  the  location  must  be  distinctly  marked 
on  the  ground,  so  that  its  boundaries  can  be  readily  traced,  and, 
within  one  month  thereafter,  that  is,  within  three  months  from  the 
discovery,  a  certificate  of  the  location  must  be  filed  for  record  in  the 
county  in  which  the  lode  is  situated,  containing  the  designation  of 
the  lode,  the  names  of  the  locators,  the  date  of  the  location,  the  num- 
ber of  feet  claimed  on  each  side  of  the  center  of  the  discovery  shaft, 
the  general  course  of  the  lode,  and  such  a  description  of  the  claim, 
by  reference  to  some  natural  object  or  permanent  monument,  as  will 
identify  it  with  reasonable  certainty.  Rev.  St.  §  2324;  Gen.  Laws 
Colo.  §§  1813,  1814. 

But  during  the  intermediate  period,  from  the  discovery  of  the  lode 
or  vein  and  its  excavation,  a  general  designation  of  the  claim  by 
notice,  posted  on  a  stake  placed  at  the  point  of  discovery,  such  as 
was  posted  by  Carroll,  stating  the  date  of  the  location,  the  extent  of 
the  ground  claimed,  the  designation  of  the  lode,  and  the  names  of 
the  locators,  will  entitle  them  to  such  possession  as  will  enable  them 
to  make  the  necessary  excavations  and  prepare  the  proper  certificate 
for  record.  The  statute  of  Colorado  requires  that  the  discoverer, 
before  a  certificate  of  location  is  filed  for  record,  shall,  in  addition  to 
posting  the  notice  mentioned  at  the  point  of  discovery,  sink  a  shaft 
upon  the  lode  to  the  depth  of  at  least  10  feet  from  the  lowest  part  of 
such  shaft  under  the  surface,  or  deeper,  if  necessary,  to  show  a  de- 
fined crevice  and  to  mark  the  surface  boundaries  of  the  claim.  Be- 
fore this  work  could  be  done  by  the  plaintiff  and  his  co-locator,  the 
ground  claimed  by  them  was  taken  possession  of  by  the  defendants, 
the  stake  at  the  point  of  discovery,  upon  which  the  notice  was  posted, 
was  removed,  and  Carroll  was  thereby,  and  by  threats  of  violence, 


RIGHTS    PRIOR   TO   DISCOVERY.  93 

prevented  from  re-entering  upon  the  premises  and  completing  the 
work  required  to  perfect  their  location  and  prepare  a  certificate  for 
record ;  at  least,  the  evidence  tended  to  establish  these  facts.  If  they 
existed, — and  this  was  a  question  for  the  jury, — the  plaintiff  was  en- 
titled to  recover  possession  of  the  premises.  To  the  extent  of  750 
feet  on  the  course  of  the  lode  on  each  side  from  the  point  of  dis- 
covery, he  and  his  co-locator  were  entitled  to  protection  in  the  pos- 
session of  their  claim.  They  did  not  lose  their  right  to  perfect  their 
location,  and  perform  the  necessary  work  for  that  purpose,  by  the 
wrongful  intrusion  upon  the  premises,  and  by  threats  of  violence  if 
they  should  attempt  to  resume  possession.  As  against  the  defend- 
ants, they  were  entitled  to  be  reinstated  into  the  possession  of  their 
claim.  They  could  not  be  deprived  of  their  inchoate  rights  by  the 
tortious  acts  of  others;  nor  could  the  intruders  and  trespassers  in- 
itiate any  rights  which  would  defeat  those  of  the  prior  discoverers. 

The  government  of  the  United  States  has  opened  the  public  min- 
eral lands  to  exploration  for  the  precious  metals,  and,  as  a  reward 
to  the  successful  explorer,  grants  to  him  the  right  to  extract  and 
possess  the  mineral  within  certain  prescribed  limits.  Before  1866 
mining  claims  upon  the  public  lands  were  held  under  regulations 
adopted  by  the  miners  themselves  in  different  localities.  These  regu- 
lations were  framed  with  such  just  regard  for  the  rights  of  all 
seekers  of  the  precious  metals,  and  afforded  such  complete  protection, 
that  they  soon  received  the  sanction  of  the  local  legislatures  and 
tribunals;  and,  when  not  in  conflict  with  the  laws  of  the  United 
State,  or  of  the  state  or  territory  in  which  the  mining  ground  was 
situated,  were  appealed  to  for  the  protection  of  miners  in  their  re- 
spective claims,  and  the  settlement  of  their  controversies.  And  al- 
though since  1866  congress  has  to  some  extent  legislated  on  the  sub- 
ject, prescribing  the  limits  of  location  and  appropriation,  and  the 
extent  o'f  mining  ground  which  one  may  thus  acquire,  miners  are 
still  permitted,  in  their  respective  districts,  to  make  rules  and  regu- 
lations not  in  conflict  with  the  laws  of  the  United  States  or  of  the 
state  or  territory,  in  which  the  districts  are  situated,  governing  the 
location,  manner  of  recording,  and  amount  of  work  necessary  to  hold 
possession  of  a  claim.  Rev.  St.  §  2324.  In  all  legislation,  whether 
of  congress,  or  of  the  state  or  territory,  and  by  all  mining  regulations 
and  rules,  discovery  and  appropriation  are  recognized  as  the  sources 
of  title  to  mining  claims,  and  development,  by  working,  as  the  condi- 
tion of  continued  ownership  until  a  patent  is  obtained.  And  when- 
ever preliminary  work  is  required  to  define  and  describe  the  claim 
located,  the  first  discoverer  must  be  protected  in  the  possession  of 
the  claim  until  sufficient  excavations  and  development  can  be  made, 
so  as  to  disclose  whether  a  vein  or  deposit  of  such  richness  exists  as 
to  justify  work  to  extract  the  metal.  Otherwise,  the  whole  purpose 
of  allowing  the  free  exploration  of  the  public  lands  for  the  precious 
metals  would  in  such  cases  be  defeated,  and  force  and  violence  in 


94  THE   DISCOVERY    OF   LODE   AND    PLACER    CLAIMS. 

the  Struggle  for  possession,  instead  of  previous  discovery,  would 
determine  the  rights  of  claimants. 

It  does  not  appear,  in  this  case,  that  there  were  any  mining  regu- 
lations in  the  vicinity  of  the  "Hawk  Lode"  which  affect  in  any  re- 
spect the  questions  involved  here.  Had  such  regulations  existed  they 
should  have  been  proved  as  facts  in  the  case.  We  are  therefore  left 
entirely  to  the  laws  of  the  United  States  and  the  laws  of  Colorado 
on  the  subject.  And  the  laws  of  the  United  States  do  not  prescribe 
any  time  in  which  the  excavations  necessary  to  enable  the  locator 
to  prepare  and  record  a  certificate  shall  be  made.  That  is  left  to  the 
legislation  of  the  state,  which,  as  we  have  stated,  prescribed  60  days 
for  the  excavations  upon  the  vein  from  the  date  of  discovery,  and 
30  days  afterwards  for  the  preparation  of  the  certificate  and  filing 
it  for  record.  In  the  judgment  of  the  legislature  of  that  state  this 
was  reasonable  time.  This  allowance  of  time  for  the  development  of 
the  character  of  the  lode  or  vein,  does  not,  as  intimated  by  counsel, 
give  encouragement  to  mere  speculative  locations ;  that  is,  to  loca- 
tions made  without  any  discovery  or  knowledge  of  the  existence  of 
metal  in  the  ground  claimed,  with  a  view  to  obtain  the  benefit  of  a 
possible  discovery  of  metal  by  others  within  that  time.  A  mere  post- 
ing of  a  notice  on  a  ridge  of  rocks  cropping  out  of  the  earth,  or  on 
other  ground,  that  the  poster  has  located  thereon  a  mining  claim, 
without  any  discovery  or  knowledge  on  his  part  of  the  existence  of 
metal  there,  or  in  its  immediate  vicinity,  would  be  justly  treated  as 
a  mere  speculative  proceeding,  and  would  not  itself  initiate  any  right. 
There  must  be  something  beyond  a  mere  guess  on  the  part  of  the 
minor  to  authorize  him  to  make  a  location  which  will  exclude  others 
from  the  ground,  such  as  the  discovery  of  the  precious  metals  in  it, 
or  in  such  proximity  to  it  as  to  justify  a  reasonable  belief  in  their 
existence.  Then  protection  will  be  afforded  to  the  locator  to  make 
the  necessary  excavations  and  prepare  the  proper  certificate  for  rec- 
ord. It  would  be  difficult  to  lay  down  any  rules  by  which  to  distin- 
guish a  speculative  location  from  one  made  in  good  faith  with  a  pur- 
pose to  make  excavations  and  ascertain  the  character  of  the  lode  or 
vein,  so  as  to  determine  whether  it  will  justify  the  expenditures  re- 
quired to  extract  the  metal ;  but  a  jury  from  the  vicinity  of  the  claim 
will  seldom  err  in  their  conclusions  on  the  subject. 

This  case,  as  appears  by  the  record,  is  brought  in  the  name  of  one 
of  the  locators,  Erhardt,  who  owns  only  four-fifths  of  the  claim. 
But,  as  a  tenant  in  common  with  Carroll,  he  can  maintain  an  action  of 
ejectment  for  the  possession  of  the  premises,  the  recovery  being  not 
merely  for  his  benefit,  but  for  that  of  his  co-tenant,  who  is  equally 
entitled  with  him  to  the  possession. 

It  follows  from  what  we  have  said  that  the  judgment  of  the  court 
below  must  be  reversed,  and  the  case  remanded  for  a  new  trial ;  and 
it  is  so  ordered. 


^"^•^         ^  '    ,  '  RIGHTS    PRIOR   TO   DISCOVERY.  Q'^        *^   ^ 

-  I    •    '   '  GEMMEL  V.  SWAIN  et  au  ^^f  '^•^ 

Wb-1903.     Supreme  Court  of  Montana.     28  Mont.  331,  72  Pac.  662. 


¥- 


CvA 


Suit  by  George  Gemmel  against  John  Swain  and  others.   From  a 
judgment  for  defendants,  plaintiff  appeals.   Affirmed. 

This  action  was  commenced  in  the  district  court  by  the  appellant,  2>je>V 
who  was  plaintiff  below,  to  secure  an  injunction  restraining  the  de-  T~T1-^- 
fendants  from  entering  upon,  sinking  shafts,  running  tunnels,  dis-    • 
covering  or  attempting  to  discover  veins  of  mineral  in,  certain  desig-  ^'^tT' 
nated  lands.    The  complaint  alleges  that  on  December  19,  1899,  a  lr*'y^ 
portion  of  section  17,  township  3  N.,  range  7  W.,  to  the  extent  of    f-v^o- 
20  acres,  was  vacant,  uninclosed,  and  unimproved  mineral  lands  of   fj.^  ^ 
the  United  States ;  that  on  that  date  the  plaintiff,  having  reason  to 
believe  and  believing  that  veins  or  lodes  of  rock  in  place,  bearing     ^"^-'^-^ 
gold,  silver,  copper,  and  other  precious  metals,  existed  therein,  en-  JX-^si,  ^ 
tered  upon  the  above-described  land  for  the  purpose  of  prospecting  ft     « 
for  and  making  discovery  of  such  veins,  and  of  locating  the  ground ;  '^^  ^*^ 
that  he  proceeded  to  sink  three  shafts,  but,  before  he  made  discovery  <Ji6iv»-sj 
of  any  such  veins  or  lodes,  he  was  enjoined  by  the  district  court,  in  >  / 
an  action  entitled  "Harley  et  al.  v.  M.  O.  P.  Co.  et  al.,"  from  further^  I 
prosecuting  his  search ;  that  he  then  posted  at  each  of  said  shafts  a  f'V-^f    t, 
written  notice  that  he  claimed  the  ground  about  each  shaft  to  the  #      ^^ 
extent  of  750  feet  east,  750  feet  west,  300  feet  north,  and  300  feet  *^ 
south  from  the  point  where  the  notice  was  posted ;  that  the  plaintiffs  C-uK^f^ 
in  that  action  then  immediately  went  upon  the  land,  and  commenced  ^^/t^ 
work  for  the  purpose  of  making  discovery  of  veins  containing  such^    . 
precious  metals,  and  of  locating  the  ground.   The  plaintiif  sought  anw^  ^  ^ 
injunction  restraining  the  defendants  from  further  proceeding  with j_^^^^_^j 
such  work.    An  order  to  show  cause  and  a  temporary  restraining   .    ^^ 
order  were  issued,  but,  before  a  hearing  was  had  upon  the  order  to  ^^j^  ' 
show  cause,  the  defendants  Harley,  Butte  &  Boston  Company,  and  Ct^AJ-^ 
Boston  &  Montana  Company  filed  a  demurrer  to  the  complaint,  which    w^  u^l  , 
was  by  the  court  sustained  ;  and,  the  plaintiff  refusing  to  amend,  the   '      f^P 
restraining  order  was  dissolved,  an  injunction  refused,  and  a  judg-  ^rVLi^ 
ment  for  costs  entered  against  the  plaintiff,  from  which  this  appeal  ^  t<-«'^ 
is  taken.  \Lt\   A 

HoLLowAY,  J.  (after  stating  the  facts). — The  only  question  for  ^*v^ 
determination  is  whether  the  complaint  states  facts  sufficient  to  en-  )vw«i-w^ 
title  the  plaintiff  to  an  injunction.  The  complaint,  upon  its  face,  [tfu»  tA 
shows  that  the  land  in  dispute  was  vacant,  uninclosed,  and  unim-  .  ^  7  » 
proved  mineral  land  of  the  United  States ;  that  the  plaintiff  went  »^*-*  *^ 
upon  it,  and  was  prospecting  for  veins  of  mineral-bearing  rock,  when  ,  .<\ 

he  was  enjoined.    He  had  made  no  discovery,  and  consequently  no  ^ 
location  had  been  made,  and  none  could  be,  for  a  location  can  rest  C*****"^ 
only  upon  an  actual  discovery  of  such  vein  or  lode.    Hauswirth  v.  \\  \^a^_  t( 
Butcher,  4  Mont.  299,  i  Pac.  714;  section  2320,  Rev.  St.  U.  S.  [U.    Wj^^jNj ' 

IC^jJCv-  i-UjiJf  u.'txi^  us^U  <U  tcorl  ^-^  A.^  //5ie-^ 


>!>>^  ,/^*'     '  ^  '     7"''^  ^^'^-■'^  1/"^^^  t  ^^*'"^*^- 

•^^>      96  THE   DISCOVERY   OF   LODE   AND    PLACER   CLAIMS. 

,.  |—       S.  Comp.  St.  1901,  p.  1424].    He  was  simply  a  prospector  upon  the 

*-'^'       public  domain,  with  the  bare,  naked  possession  of  the  ground  imme- 

f  4)        diately  about  the  three  shafts  where  he  was  prosecuting  his  work. 

^        His  possession  was  only  such  as  is  characterized  in  the  law  as  pos- 

^  •         sessio  pedis,  and  could  not  be  enlarged  to  include  the  entire  20-acre 

^^.       tract,  or  the  whole  amount  of  ground  which  he  might  have  claimed 

).    ■    under  one  or  more  quartz  locations.    Until  discovery  is  made,  no^ 

^ty)  '      right  of  possession  to  any  definite  portion  of  the  public  mineral  lands 

^  ]       can  even  be  initiated.    Until  that  is  done,  the  prospector's  rights  arg. 

'      confined  to  the  ground  in  his  actual  possession,  and  until  that  pos- 

^  ^       session  is  disturbed  no  right  of  action  accrues,  and  even  then  no  in- 

vj^        junction  would  issue  to  restrain  a  mere  trespass — certainly  not  in  the 

absence  of  some  showing  of  irreparable  injury  or  the  insolvency  of 

■<rc4*  -    the  trespasser. 

^^  No  contention  is  made  that  the  work  done  by  the  defendants  in 

\) ,  prospecting  this  ground  was  done  in  or  about  any  one  of  the  shafts 
I  r^^  where  plaintiff  was  prosecuting  his  work  when  enjoined,  or  that  the 
'  w  work  done  by  the  defendants  in  any  manner  interfered  with  the  work 

^'^  done  by  the  plaintiff.  The  fact  that  plaintiff  posted  a  notice  at  each 
.  y^  of  his  shafts  did  not  create  any  new  right  in  him,  or  enlarge  the  right 
he  already  had.  A  notice  of  location  (for  such  these  notices  pur- 
tjt/^  ported  to  be)  posted  upon  mineral  land  before  discovery  is  made  is 
^  an  absolute  nullity.  Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66;  section 

*^  2320,  Rev.  St.  U.  S.  [U.  S.  Comp.  St.  1901,  p.  1424].  The  mere  fact 
^j^^JSy-j^hat  the  plaintiff  was  enjoined  from  continuing  his  work,  and  that, 
too,  wrongfully,  as  determined  by  this  court  "(Harley  v.  M.  O.  P. 
''^"^A  Co.,  71  Pac.  407),  did  not  alter  the  relative  rights  of  the  parties,  or 
entitle  the  appellant  here  to  an  injunction  in  this  action.  Competing 
prospectors  cannot  make  use  of  the  writ  of  injunction  to  secure  pri- 
ority of  discovery  or  location  on,  or  apparent  superiority  of  right  to, 
a  mining  claim. 

We  are  of  the  opinion  that  the  complaint  does  not  state  facts  suffi- 
cient to  entitle  the  appellant  to  an  injunction,  and  that  the  district 
k^        court  committed  no  error  in  sustaining  the  demurrer.  The  judgment 
iKrx.     ^^  affirmed.  Affirmed. 

>  u        1904-     Supreme  Court  of  California.     144  Cal.  439,  yy  Pac.  1023. 

»  iS,  Action  by  F.  F.  Weed  and  others  against  Walter  Snook  and 

others.    From  a  judgment  in  favor  of  defendants,  plaintiffs  appeal. 
Affirmed. 

Cooper,  C.- — This  action  was  brought  by  plaintiffs  to  quiet  title  to 
the  south  half  of  the  northeast  quarter  of  section  12,  T.  11  N.,  R.  4 

'  Parts  of  the  opinion  are  omittpd.       „        ,  ^ 

e(h  1  ^«m)  *rH  vv.-^'r^  >^^ttfi^  )  W-hftXcA^^ 


jkAn  LoJ^  wvH  rt'W^ic.v^.^-vO  H-v.v\ ' ".^) -*L^  U^Ap^^  U, 

""^^^  RIGHTS    PRIOR   TO   DISCOVERY.  '  97    /5    d  JV 


W.,  S.  B.  AI.  The  case  was  tried  before  the  court,  and  findings  filed,    '  *     ^ 
upon  which  judgment  was  entered  for  defendants.    Plaintiffs  made  ^ 

a  motion  for  a  new  trial,  which  was  denied,  and  bring  this  appeal  Cowi^ 
from  the  order.  0-*0 

The  facts  are  fully  found,  and     *     *     *     the  case  on  the  merits 
involves  the  single  proposition  as  to  whether  or  not  the  facts  are  €**>«-*•- 
such  as  to  support  the  judgment  and  order.     *     *     *     The  plain- ^^"C^ 
tiffs  and  defendants  all  claim  under  locations  made  or  claimed  to    '  ■ 
have  been  made  of  the  land  as  mineral  land.   The  mineral  claimed   ^  lti 
and  conceded  to  exist  in  the  land  is  oil.   Under  Act  Cong.  Feb.  n,  k  jf<, 
1897,  c.  216,  29  Stat.  526  [U.  S.  Comp.  St.  1901,  p.  I434],  the  loca-  p  >C  r" 
tion  and  sale  of  oil  land  is  governed  by  the  mineral  laws  of  the  United  i   ^^^ 
States  applicable  to  the  location  and  sale  of  placer  mining  claims.  T 
The  questions  material  to  the  decision  of  this  case  do  not  involve  the   C<^  " 
marking  of  the  locations,  nor  the  posting  of  notices,  but  the  validity   t^^c^ 
of  the  locations  of  the  respective  parties  as  to  their  respective  dates    ^ 
and  the  discovery  of  oil  in  the  land.    It  may  be  stated  preliminarily  \.^  O* 
that  oil  was  not  discovered,  under  either  location,  until  found  by  ^^^^  < 
sinking  or  driving  a  well  down  to  the  sand.    The  mere  finding  '^^\jZ* 
surface  indications,  such  as  seepage  of  oil,  is  not  ordinarily  sufficient.  V'VV 
Oil  must  have  been  discovered  within  the  limits  of  the  claim.    Ne-  *^  Kj^ 
vada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  673;  Miller  v.  ^^«u^ 
Chrisman,  140  Cal.  446,  73  Pac.  1083,  74  Pac.  444.    The  facts  and  ^^^„^ 
dates  as  to  the  respective  locations  and  discoveries  in  and  to  the  80^  ^^  ^ 
acres  in  contest  are  substantially  as  follows :   On  January  20,  1900,  . 
defendants  Walter  Snook,  John'Snook,  Maria  B.  Snook,  E.  A.  Baer,  *^  ^ 
W.  L.  Dixon,  G.  J.  Plantz,  F.  N.  Sawyer,  and  R.  Frizelle,  each  be-«-y{H 
ing  a  citizen  of  the  United  States,  made  a  location  and  marked  0^  U* 
the    boundaries    of    a    consolidated    placer    mining    claim    called^^^^^  /> 
the   "Padfic   Placer  Mining   Claim,"   which   location   included   the  ^_^ 
land  in  contest.     On  the  loth  day  of  April,  1900,  William  Carter,  T^*"^ 
G.    E.    Squires,    and    C.    J.    Harvey,    three    of    the    plaintiffs,    to-  tV**^ 
gether  with  one  Ross,  each  being  a  citizen  of  the  United  States,  p^-mJ^ 
located  a  mining  claim  consisting  of  the  north  half  of  the  south-   .  ^^^ 
east  quarter  of  said  section,  being  the  80  acres  of  land  south  of  .  ^ 
the  land  in  contest,  and  known  as  "Ohio  No.  i  Placer  Claim."    On     ^^  • 
^the  23d  day  of  May,  1900,  the  said  locators  of  the  north  half  of  the  -;    x.-j 
.  ^'*'"  southeast  quarter  of  said  section,  including  three  of  the  plaintiffs,    _  ^  ^ 
^     conveyed  to  the  Lion  Oil  Company,  a  corporation,  10  acres  of  the  ; '  ; 
^  said  80  located  by  them.   The  said  Lion  Oil  Company  proceeded  to  •    -  •  ■•  ' 

tj>      develop  the  10  acres  conveyed  to  it,  and  in  October,  1900,  had  driven 
'y        a  well  750  feet  deep,  and  discovered  oil  therein.  This  discovery  com- 
^^  pleted  and  validated  the  location  of  the  said  north  half  of  the  south-  - 
east  quarter  of  said  section.  At  this  time  the  defendants  had  not  sue-  ,.^- 
ceeded  in  discovering  oil,  and  thus  perfecting  their  location  of  the  fWv, 
south  half  of  the  northeast  quarter  of  said  section.    On  November  ^  ^ 
28,   1900,  before  there  was  any  conflict  as  to  the  land  in  contest,  ,^  ^^  ^ 


7 — Mining  Law 


"""""■      98  THE   DISCOVERY    OF    LODE    AND    PLACER    CLAIMS. 

^       tlie  Vesuvius  Oil  Company,  a  corporation,  having  leased  from  and 

I  CT"      through  defendants  the  said  lands,  went  into  actual  possession  there- 

-^       of,  and  began  the  active  work  of  preparing  to  drill  a  well  therein  for 

'^^^  '     the  discovery  of  oil.   At  this  time  there  was  still  no  conflict  as  to  the 

Za  *      land  in  contest,  and  neither  plaintiffs  nor  any  one  else  other  than 

^j^„^^£^  defendants  were  claiming  any  interest  in  or  possession  to  the  said 

^T^lands  so  leased  to  the  Vesuvius  Oil  Company.     On  the  24th  day  of 

December,  1900,  while  the  said  Vesuvius  Oil  Company  was  in  the 

- ,  w,'     quiet  and  peaceable  possession  of  the  lands  in  contest,  and  erecting 

^W  '■    ^^^  buildings,  derricks  and  machinery  thereon  for  the  purpose  of  drill- 

.       ing  for  oil,  the  plaintiffs,  without  permission  of  defendants,  made  out 

4^h     a  notice  in  due  form  for  a  consolidated  placer  mining  claim  for  the 

,.^0  south  half  of  the  northeast  quarter  and  the  north  half  of  the  south- 

^   .  7  'east  quarter,  being  the  lands  embraced  in  both  the  prior  locations, 

r^.     the  Ohio  No.  i  placer  claim  and  the  Pacific  placer  claim.   The  plain- 

l(r  •    tiffs  were  citizens  of  the  United  States,  and  entitled  to  locate  min- 

^,,^J^.-/.  eral  lands.   They  properly  marked  the  location  of  the  claim  so  as  to 

^  indicate  its  boundaries,  and  posted  a  notice  upon  the  same,  claiming 

it  as  ''Lion  No.  i  Placer  Claim."    At  the  time  of  so  attempting  to 

"'^^     locate  the  entire  160  acres,  the  plaintiffs  had  made  no  discovery  of 

,_^j^  oil  or  mineral  in  the  south  half  of  the  northeast  quarter,  nor  had  they 

j^^^     attempted  to  do  so,  and  the  claim  to  the  north  half  of  the  southeast 

^^     quarter  had  been  perfected  by  the  discovery  of  oil  therein  on  the 

J^      10  acres  conveyed  to  the  Lion  Oil  Company.    They  have  never  en- 

^^    tered  upon  the  land  in  contest,  nor  discovered  oil  thereon ;  the  only 

"•^     discovery  being  that  made  by  the  Lion  Oil  Company  as  aforesaid. 

^t%4,^n  December  27,  1900,  the  Vesuvius  Oil  Company  commenced  the 

^»3^^,work  of  drilling  a  well  upon  the  land  in  contest.    On  January  15, 

'*^'i90i,  while  the  said  lessee  of  defendants  was  in  possession  of  the 
y'*^T>  land  in  contest,  and  had  expended  a  large  amount  of  money  in  ma- 
IC^^  chinery  and  labor,  and  was  so  engaged  in  drilling  for  oil  on  the 
^j^  premises,  the  plaintiffs  commenced  this  action.  In  February,  1901, 
T^  the  said  Vesuvius  Oil  Company  discovered  oil  in  the  said  well  so 
'vBvxf  drilled  by  it  on  said  land,  and  at  the  time  of  the  trial  of  this  action 
^  had  expended  for  machinery,  building,  and  drilling  for  oil  the  sum 
wjt      of  about  $10,000. 

*^^'-  Upon  the  above  facts  defendants  were  entitled  to  judgment.  The 
fCvs »  plaintiffs  must  rely  upon  the  strength  of  their  own  title.  Thev  have 
^  ^  not  expended  money  nor  entered  upon  the  development  of  the  lands 
in  contest.  They  have  made  no  discovery  of  oil  thereon.  They  have 
'-^  merely  posted  notices  and  marked  the  boundaries  of  the  land  in  con- 
^^  nection  with  the  south  80  acres,  which  they,  or  at  least  three  of  them, 
^  had  already  located.  The  discovery  of  oil  had  been  made  upon  this 
k  J  south  80  acres,  but  the  plaintiffs  here  cannot  claim  such  discovery  as 
fjl^     being  a  discovery  upon  the  land  in  contest.    The  claim  of  appellant 

/•  that  the  prior  discovery  on  the  south  80  can  be  availed  of  for  the 
-^    purpose  of  making  a  consolidated  filing  upon  the  whole  160  acres 


RIGHTS    PRIOR    TO   DISCOVERY.  QQ 

cannot  be  upheld.  If  such  be  the  law,  eight  parties  might  locate  20 
acres  each  of  a  quarter  section,  and  each  begin  the  work  of  putting 
in  machinery  and  drilling  on  his  20  acres.  It  is  at  once  apparent  that 
the  first  discovery  of  oil  by  either  of  the  parties  would  depend  upon 
many  circumstances,  such  as  the  means  of  the  party,  his  experience, 
the  kind  of  land  or  rock  through  which  he  must  drive  his  well.  Some 
one  of  the  eight  would  be  the  first  to  discover  oil.  Could  such  party 
then  get  seven  others,  and  relocate  his  claim,  with  the  entire  160 
acres,  as  a  consolidated  claim,  and  thus  claim  the  first  discovery  as  to 
the  entire  160  acres,  and  obtain  title  thereto  to  the  exclusion  of  the 
seven  other  original  locators?  Such  course  cannot  be  sanctioned  by 
the  courts.  It  would  lead  to  strife,  riots,  and  the  shedding  of  blood. 
And  yet  such  is,  in  principle,  the  claim  of  the  plaintiffs  in  this  case. 

The  statutes  and  mining  laws  of  the  United  States  do  not  contem- 
plate the  forcible  or  clandestine  entry  and  location  of  lands  in  the 
peaceable  possession  of  other  parties,  who  have  located  the  same  in 
good  faith,  and  who  are  endeavoring  to  secure  their  claims.     Ather- 
ton  V.  Fowler,  96  U.  S.  513,  24  L.  Ed.  732:  Nevada  Sierra  Oil  Co. 
v.  Home  Oil  Co.  (C.  C.)  98  Fed.  680'' :  Miller  v.  Chrisman,  140  Cal. 
449,  'J 'I  Pac.  1085.     *     *     *     The  correct  rule  is  stated  in  Miller  v. 
Chrisman,  supra :     "One  who  thus  in  good  faith  makes  his  location, 
[remains  in  possession,  and  wrffi" "diie  diligence  prosecutes  his  work 
--  I'toward  a  discovery,  is  fully  protected  against  all  forms  of  forcible, 
■*'  I  fraudulent,  surreptitious,  or  clandestine  entries  and  intrusions  upon 
(his  pns-^es^ion.     *     *     *     They  [the  locators]  have,  then,  this  right 

^"It  is  true  that  upon  mineral  land  of  the  United  States  upon  which  there 
is  no  valid  existing  location  any  competent  locator  may  enter,  even  if  it  is  in 
the  actual  possession  of  another,  provided  he  can  do  so  peaceably  and  in  good 
faith,  in  order  to  initiate  a  location  for  himself;  but  no  right  upon  any  gov- 
ernment land,  whether  mineral  or  agricultural,  which  is  in  the  actual  posses- 
sion of  another,  can  be  initiated  by  a  forcible,  fraudulent,  surreptitious,  or 
clandestine  entry  thereon.  Such  entry  must  be  open  and  aboveboard,  and 
made  in  good  faith.  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  ed.  735 :  Atherton 
v.  Fowler,  96  U.  S.  51.3,  24  L.  ed.  732.  One.j\Lha is  in  the  actual  possession  of 
•fY  s^JEUJling-  clairq,  working  it  for  the  mineral  it  contains,  and  claiming  it  under 
jT  THie  la\v5  of  the  United  States,  whether  the  location  under  which  he  so  claims 
is  valid  or  invalid,  cannot  be  forcibly,  surreptitiously,  clandestinely,  or  other- 
wise fraudulently  intruded  upon  or  ousted  while  he  is  alseep  in  his  cabin,  or 
temporarily  absent  from  his  claim."  Ross,  Circuit  Judge,  in  Nevada  Sierra 
Oil  Co.  V.  Home  Oil  Co.,  98  Fed.  673,  680,  681. 

"But  every  competent  locator  has  the  right  to  initiate  a  lawful  claim  to  un- 
appropriated public  land  by  a  peaceable  adverse  entry  upon  it  while  it  is  in  the 
sl^     I  possession  of  those  who  have  no  superior  right  to  acquire  the  title  or  to  hold 
^     I  the  possession.    *    *    *    Any  other  rule  would  make  the  wrongful  occupation 
of  public  land  by  a  trespasser  superior  in  right  to  a  lawful  entry  of  it  under 
the  acts  of  congress  bv  a  competent  locator."     Sanborn,  J.,  in  Thallman  v. 
Thomas,  45  C.  C.  .A.  517,  111  Fed.  277,  279. 
4»-    1 1      "Mere  naked  pii-;;r.->sinn  must  yield  to  the  higher  right  acquired  by  one  who 
I      1/  has"connected  hinist^lf  with  the  government."     Brantlv,  C.  J.,  in  Ferris  v.  Mc- 
NiTIy,  —  Mont."^7T2rPi5.' 889789^1'.  " 


^ 


100  THE  DISCOVERY   OF   LODE   AND    PLACER   CLAIMS.  '^*"^ 

of  possession,  and  with  it  the  right  to  protect  their  possession  against 
all  illegal  intrusions,  and  to  work  the  land  for  the  valuable  minerals 
it  is  thought  to  contain.  We  cannot  conceive  why  these  rights  may 
not  in  good  faith  be  made  the  subject  of  conveyance  by  the  associates 
as  well  before  as  after  discovery."  *  =^  *  ^nd  we  regard  the  law 
as  settled  that,  while  a  locator,  who  has  made  his  location,  is  en-> 
2^        gaged,  in  good  faith,  in  prospecting  it  for  minerals,  and  complies  T 

with  the  laws  as  to  expenditures,  and  is  in  possession,  the  land  is  not/ 
-'  open  for  location  by  others.     In  case  of  petroleum  lands  the  discov- 

ery cannot,  in  most  cases,  be  made  except  by  considerable  labor  and 
expense  in  sinking  wells.     In  making  the  location  the  locator  neces- 
1^^^     sarily  takes  into  consideration  surface  indications,  geological  forma- 
A        tions,  proximity  to  known  mines  or  wells  producing  oil.     He  must 
'^       make  his  location  in  good  faith,  and  use  proper  diligence  to  make 
vlSt       discovery  of  oil.     If  he  does  not  do  so,  he  will  lose  his  rights,  under 
^jLj    his  location,  as  to  parties  who  may  afterwards  in  good  faith  acquire 
rights.     But  where  the  locator  is  in  possession  under  his  location, 
*»^  •   and  is  actively  at  work  through  his  lessees  or  otherwise,  and  expend- 
\^.       ing  money  for  the  purpose  of  discovering  oil,  his  rights  cannot  be 
forfeited  to  third  parties  who  attempt  to  make  locations  under  such 
circumstances.     The  law  must  be  given  a  liberal  and  equitable  inter- 
pretation with  a  view  of  protecting  prior  rights  acquired  in  good 
faith. 

We  advise  that  the  order  be  affirmed. 

For  the  reasons  given  in  the  foregoing  opinion,  the  order  appealed 
from  is  affirmed  :  Angellotti,  J. ;  Shaw,  J. ;  Van  Dyke,  J. 

,  «  ,   ^     '^  HANSON  ET  AL.  V.  CRAIG  et  al. 

1909.     Circuit  Court  of  Appeals.     95  C.  C.  A.  338,  170  Fed.  62. 

^* . '        On  Rehearing. 

^  ^i.    Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 
,    ^"^   Ross,  Circuit  Judge. — Not  being  satisfied  with  our  decision  here- 
^•'^•^^.   tofore  rendered  in  this  case  (161  Fed.  861,  89  C.  C.  A.  55),  the  peti- 
,-«        tion  for  a  rehearing  of  the  cause  was  granted,  and  after  a  further 
^      consideration  of  the  record  we  are  convinced  that  the  decision  then 
#        made  was  erroneous.     The  theory  upon  which  we  then  proceeded 
jj^      was  that  the  evidence  was  sufficient  to  justify  a  finding  of  such  a  pos- 
session of  the  mining  ground  in  question  by  the  defendants  in  error, 
t*f<)f   who  were  the  plaintiffs  below,  as  precluded  the  plaintiffs  in  error, 
1^^^^     who  were  defendants  below,  from  entering  upon  it  for  the  purpose 
of  prospecting  and  making  a  valid  mining  location  thereon.     Some 

^  c^N^iTT?^  "te-vs^r-jst;-^  ^^po^  i::t^  ^^y^r 

^^J^h^L.^^A-j^tfJ' J^^         ^x-^ci^  Hpam^  f*^^^ 
-jet.  ^^  "  '  l^f^^  iV  ^^t}^ 


tv 


^H^K  ,  *^*txX.        ' "  "^  "fVji  TCf , 


^^^1  RIGHTS    PRIOR   TO   DISCOVERY.  '  lOI  ' 

of  the  facts  are  stated  in  the  opinion  then  delivered,  but  there  are 
other  facts  shown  by  the  record  which  were  overlooked.  -         | 

The  plaintiffs  in  error,  as  well  as  the  defendants  in  error,  are  eight  kupic  ^■ 
in  number,  and  made  the  location  under  which  they  respectively  *    jjf^ 
^lairn  as  an  association  claim  of  i6o  acres  of  placer  ground.     The 
location  of  the  defendants  in  error  was  prior  in  point  of  time,  having  t  v^ 
been  made  on  the  5th  day  of  January,  1906;  the  ground  then  staked   \^^^/'%JL 
by  them  being  1,320  feet  wide  by  a  mile  long,  on  Wildcat  Creek,  a 
tfiTDutary  of  Treasure  Creek,  in  the  Fairbanks  mining  district  of      ^;:,; 
Alaska.     That  claim  was  called  the  "Red  Dog  Association  Claim."  , 
On  the  i8th  of  the  next  month  the  defendants  in  error  changed  the  ; '  *-•    * 
boundaries  of  the  claim,  so  as  to  lessen  the  width  one-half  and  to  ^  ''    -^ 
double  the  length,  and  marked  the  boundaries  thereof  so  that  they  •  * 
could  be  readily  traced  upon  the  ground,  and  thereafter  recorded  the 
notice  of  such  location.     The  record  shows  that  the  defendants  in 
error  had  various  other  association  claims  of  160  acres  each  in  the    .-v 
near  vicinity  and  had  a  camp  not  far  away.     The  evidence  tended  to  ■'  *jrv^ 
show  that  on  the  12th  of  March,  1906,  the  defendants  in  error  made     '  - 
arrangements  to  commence  sinking  a  shaft  upon  the  ground  thus  ■^ 

claimed  in  search  of  gold,  and  with  that  end  in  view  it  was  arranged  I Q\% 
that  the  defendant  in  error  Cale  should  go  to  Fairbanks,  which  was  v 
about  18  miles  distant,  to  procure  the  necessary  tools,  blankets,  and  ^*tff   C« 
other  supplies,  and  to  return  to  the  claim  and  commence  work  there-  ^ytj^ 
on  on  the  i6th  of  March,  1906,  and  that  in  the  meantime  the  defend-  Y*^« 
ant  in  error  Carroll  and  one  Hugh  Dougherty  as  the  representative  |k^^ 
of  the  defendant  in  error  Alice  Dougherty,  should  begin  the  sinking  *J^ 
of  a  shaft  on  the  claim,  which  they  did  on  the  14th  of  March,  1906,  4^«M|* 
continuing  such  work  during  the  14th  and  a  part  of  the  15th  of  that  0,^_^ 
month,  during  which  time  they  sunk  the  hole  to  a  depth  of  about  six 
feet.     It  appears  that  in  the  evening  of  March  15th  Carroll  and  ^''^*-  f| 
Dougherty  left  the  claim,  taking  with  them  their  tools  and  other  be-  \.  t^ 
longings,  for  the  reason  that  Cale  was  expected  to  return  from  Fair-      '    ., 
banks,  under  the  arrangement,  and  proceed  with  the  work  thereon  * 

the  next  morning,  and  also  assigned  as  a  reason  that  until  the  shaft  ViA^lf... 
had  been  sunk  a  sufficient  distance  but  one  man  could  work  therein,  t'x  flvK 
It  appears  from  the  testimony  that  Cale  selected  the  place  on  the  12th  jj  *  / 
of  March  for  the  sinking  of  this  shaft ;  that  witness  testifying:  hjJ I 

"I  told  Mr.  Carroll  and  Mr.  Dougherty  on  the  evening  of  the  12th  that  they/|-«-^«* 
could  go  to  work  and  commence  sinking  a  shaft  immediately,  and  that  Ij_^^  ^*| 
would  leave  in  the  morning  and  go  to  Fairbanks  Creek,  and  that  it  would  not  f 

take  me  to  exceed  three  days  to  get  back;  that  I  would  be  back  on  the  third  pcr^ 
day  if  nothing  intervened— nothing  interfered  with  me— which  they  agreed  to     1    ^ 


do.     I  had  a  similar  conversation  with  them  on  the  morning  of  the  13th,  when 
leaving.     That  was  the  understand 
and  commence  work  on  this  shaft 


leaving.     That  was  the  understanding,  that  they  would  go  up  in  the  morning  ^^  •^. 

';  on  this  ground;  and  I  left  on  that  morn- 


fl^  S  ''-v|>^'C<.  .    Oa^  ^ry^L^  C^S\^  fo  fl\a^  Av^€^/    k/^>-*5>-^ 


'     '     102  THE   DISCOVERY   OF/LObE    AND    PLACER    CLAIMS. 

I  There  was  also  testimony  going  to  show  that  Cale  returned  to 

w'ithin  one  mile  of  the  Red  Dog  association  claim  on  the  i8th  of 
March,  with  his  tools  and  supplies,  but,  instead  of  going  onto  the 
ground  and  commencing  work,  stopped  at  the  camp  of  the  defendant 
in  error  Carroll,  and  from  there  went  back  to  Fairbanks  Creek,  and 
did  not  return  to  the  ground  in  dispute  until  the  afternoon  of  the  21st 
of  March,  when  he  went  to  work  in  the  shaft  or  hole  that  had  been 
commenced  on  the  14th  of  the  month  by  Carroll  and  Dougherty ; 
Cale  testifying : 

"I  immediately  went  to  work,  and  remained  working  until  tlie  shaft  was 
sunk  to  bedrock.  I  worked  alone  for  a  while,  until  I  got  the  shaft  down  as 
far  as  I  could  get  it  and  throw  the  dirt  out.  Then  I  went  to  work  and  tim- 
bered the  shaft,  and  made  a  windlass  and  a  few  other  things  that  were  neces- 
sary to  continue  the  work,  and  I  then  got  Mr.  Warren  [being  one  of  the  de- 
fendants in  error]  to  help  along  in  finishing  the  shaft,  sinking  it  to  bed  rock 
[and  that  in  sinking  the  shaft  he  made  a  discovery  of  gold]." 

This  discovery  of  gold,  however,  was  subsequent  to  the  location 
which  was  made  by  the  plaintiffs  in  error  on  the  i6th  day  of  March, 
1906,  of  a  claim  called  "Try  Again  Association  Claim,''  which  loca- 
tion included  a  part  of  the  ground  covered  by  the  Red  Dog  associa- 
tion claim.  The  plaintiffs  in  error  so  marked  the  boundaries  of  the 
Try  Again  association  claim  as  that  they  could  be  readily  traced  upon 
the  ground,  and  commenced  sinking  a  shaft  upon  that  portion  of  it 
which  overlapped  the  Red  Dog  association  claim  of  the  defendants 
in  error,  and  continuously  prosecuted  their  work  until  they  made  a 
discovery  of  gold  thereon  on  the  15th  day  of  April,  1906,  up  to  which 
time  the  defendants  in  error  had  not  made  any  discovery  of  mineral 
within  the  boundaries  of  the  Red  Dog  association  claim. 

Since  the  statute  of  the  United  States  requires,  as  one  of  the  essen- 
tial conditions  to  the  making  of  a  valid  location  of  unappropriated 
public  land  of  the  United  States  under  the  mining  laws,  a  discovery 
of  mineral  within  the  limits  of  the  claim  (Rev.  St.  §§  2320,  2329  [U. 
S.  Comp.  St.  1901,  pp.  1424,  1432]),  the  real  question  for  decision  in 
this  case  is  whether  the  defendants  in  error  had  such  possession  of 
the  Red  Dog  association  claim  as  precluded  the  plaintiffs  in  error 
from  entering  upon  the  ground  and  making  their  location  of  March 
16,  1906,  under  which  they  proceeded  to  make  a  discovery  of  gold 
within  the  boundaries  marked  out  by  them,  prior  to  any  discovery  by 
the  defendants  in  error.  The  exclusive  right  of  possession  is  by  sec- 
tion 2322  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  1425) 
conferred  only  on  one  who  has  made  a  valid  location,  one  of  the  es- 
sentials of  which  is,  as  has  been  said,  a  discovery  of  mineral.  Prior 
to  that  time  all  such  mineral  land  is  in  law  vacant  and  open  to  ex- 
ploration and  location,  subject  to  the  well-established  rule  that  no 
prospector  is  authorized  by  any  form  of  forcible,  fraudulent,  surrep- 
titous,  or  clandestine  conduct  to  enter  or  intrude  upon  the  actual  pos- 
session of  another  prospector ;  for  every  miner  upon  the  public  do- 


RIGHTS    PRIOR    TO   DISCOVERY.  IO3 

"T^  j  main  is  entitled  to  hold  the  place  in  which  he  may  be  working  against 
''"I  all  others  having  no  better  right.     Zollars  v.  Evans  (C.  C.)  5  Fed. 
'  172.     The  matter  is,  we  think,  well  and  tersely  put  by  Costigan  on 
Mining  Law,  p.  156,  where  he  says: 

1"  'Pedis  possessio'  means  actual  possession,  and  pending  a  discovery  by  any- 
body the  actual  possession  of  the  prior  arrival  will  be  protected  to  the  extent 
needed  to  give  him  room  for  work  and  to  prevent  probable  breaches  of  the 
peace.  But,  while  the  pedis  possessio  is  thus  protected,  it  must  yield  to  an 
actual  location  on  a  valid  discovery  made  by  one  who  has  located  peaceably, 
and  neither  clandestinely  nor  with  fraudulent  purposes." 

These  views  are,  we  think,  well  sustained  by  numerous  decisions 
of  the  Supreme  Court,  of  this  court,  and  various  other  courts,  some 
of  which  we  cite.  Del  Monte  Mining  &  MilHng  Company  v.  Last 
Chance  Mining  &  Milling  Company,  171  U.  S.  55,  18  Sup.  Ct.  895, 
43  L.  Ed.  '/2 ;  Jennison  v.  Kirk,  98  U.  S.  453,  25  L.  Ed.  240 ;  Belk  v. 
Meagher,  104  U.  S.  279,  26  L.  Ed.  735  ;  King  v.  Amy  &  Silversmith 
M.  Co.,  152  U.  S.  222,  14  Sup.  Ct.  510,  38  L.  Ed.  419;  Creede  v. 
Uintah  M.  Co.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501  ;  Cook 
V.  Klonos  (C.  C.  A.)  164  Fed.  529;  Johanson  v.  White,  160  Fed.  901, 
88  C.  C  A.  83;  Malone  v.  Jackson,  137  Fed.  878,  70  C.  C.  A.  216; 
Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  673;  Olive 
Land  &  Development  Co.  v.  Olmsted  (C.  C.)  103  Fed.  568;  Gemmel 
v.  Swain,  28  Mont.  331,  72  Pac.  662,  98  Am.  St.  Rep.  570;  Du  Prat 
V.  James,  65  Cal.  555,  4  Pac.  562;  Horswell  v.  Ruiz,  67  Cal.  iii,  7 
Pac.  197.  Applying  the  foregoing  decisions  to  the  present  case,  it  is 
imjgossijilejtohoiduggn  the  record  here  that  the  defendants  in  ^rror 
fiad  sucl2_a_possession  of  tlie  strij2_qf  public  land  660  feet  widFan3"2 
milesTong  as  pf^ecTiJded''any  other  good-faith  prospector  from  peace- 
ably going  within  those  boundaries  and  himself  making  a  discovery 
and  li  ication. 

It  i>  iieriincnt  to  add  that  the  Land  Department  of  the  government 
has  recently  decided  that  it  would  not  recognize  any  such  shoestring 
location  as  conforming  to  the  provisions  of  the  United  States  statutes 
upon  the  subject.  See  Snow  Flake  Fraction  Placer,  37  Land.  Dec. 
Dep.  Int.  250  (decided  November,  1908),  where  it  was  said: 

"It  is  the  policy  of  the  government  to  have  entries,  whether  they  be  of  agri- 
cultural or  mineral  lands,  in  compact  form.  Congress  has  repeatedly  an- 
nounced this  principle,  and  the  department  has  always  and  does  now  insist 
upon  it.  The  public  domain  must  not  be  cut  into  long  and  narrow  strips.  No 
'shoestring'  claims  should  ever  receive  the  sanction  of  this  department." 

It  results  that  the  judgment  must  be,  and  hereby  is,  reversed,  and 
the  cause  remanded  to  the  court  below. 


.^04  THE  DISCOVERY   OF   LODE   AND    PLACER    CLAIMS. 

'    •-*"»  "^      '  (b)   Conveyances.  ^k-ii^  yvLC!**^'' 

*;  -         MERCED  OIL  MINING  CO.  et  al.  v.  PATTERSON  et  al.     "     r 

1912.     Supreme  Court  of  California.     122  Pac.  950.       Co  '^^ 

'  ^^    ■  <^[!^ 

^^.,         Action  by  the  Merced  Oil  Company  and  others  against  R.  L.^^/j^ 
Patterson  and  others.    From  a  judgment  for  plaintiff,  C.  H.  Castle,   ''^^^'^'^ . 
defendants  appeal.     Affirmed.  P^ 

r^")       Angellotti,  J.     This  is  an  appeal  by  defendants,  upon  the  judg-  r*^^,^ 
^\J     ment  roll  from  a  judgment  in  favor  of  plaintiff  C.  H.  Castle  against  \^il 
I  *»       the  defendants,  adjudging  him  to  be  the  owner  and  entitled  to  the  -'^^^^ 
^        possession  of  40  acres  of  mineral  land  (the  mineral  being  oil),  being 
J^    the  south  half  of  the  north  half  of  the  southeast  quarter  of  section 
j   22,  Tp.  19  S.,  R.  15  E.,  M.  D.  B.  &  M.  The  case  was  before  us  on  a 
►vV'   former  appeal  involving  a  judgment  against  defendants  in  favor  of 
C       Castle  for  said  land,  and  also  in  favor  of  the  Merced  Oil  Mining 
^    Company  for  the  north  half  of  the  south  half  of  said  southeast  quar- 
^'*"   ter  of  said  section,  the  action  having  been  dismissed  as  to  the  Great 
Northern  Oil   Company.    The  judgment  was  affirmed  as  to  said 
Merced  Oil  Mining  Company,  and  reversed  as  to  Castle.  ]\Ierced  Oil 
Mining  Co.  v.  Patterson  et  al.,  153  Cal.  624,  96  Pac.  90.   The  action 
was  thus  terminated  as  to  said  company.   A  retrial  was  had  between 
^^^    plaintiff  Castle  and  the  defendants,  resulting  in  the  judgment  ap- 
pealed from.  --'^^^^I^NiA^ 

A  very  general  statement  of  the  material  facts  appearing  on  the  m/^a 
former  appeal  is  essential  to  a  proper  understanding  of  the  ques- 
tion presented.    In  May,  1899,  one  Spinks  and  seven  associates  ha^V^  f 
t^,      entered  upon  and  located  under  the  placer  mining  laws   for  thej^^^^vvV' 
_  purpose  of  exploring  for  oil  the  whole  of  the  southeast  quarter  ot^    ' 
said  section  22,  the  same  being  vacant,  unoccupied  mineral  lands'^^'''^^ 
of  the  United  States,  complying  with  all  the  requirements  of  thcA  ($^tii£. 
law  in  regard  to  the  making  of  such  selection,  and  thenceforth  pro-       /-- 
ceeding  with  the  work  of  development.    In  January,  1900,  they  ^con-^^^''^^   ^ 
yeyed  in  severalty  to  the  Merced  Oil  Mining  Company  the  portion!  0  h/v^ 
claimed  by  such  company.     In  February,   1900,  thev  convevedih^-    \  1,. 
severalty  to  Castle  the  portion  claimed  by  him.     The  Merced,  etc.,  "'^^ 
Company  duly  prosecuted  the  work  of  discovery  on  the  portion  con-j'^'*'^ 
veyed  to  it,  and  in  September  or  October,  1900,  made  a  sufficient"  ^  A-w" 
discovery  of  oil.     This  was  the  first  and  only  discovery  ever  made    \r,aA& 
on  said  southeast  quarter.     The  defendants  claimed  under  an  entry     ,  ,^  t 
and  attempted  the  location  of  said  southeast  quarter  made  in  1904,      / 
Castle  never  having  taken  possession  of  the  part  conveyed  to  him  or  '  -j^'^ 
done  any  development  work  thereon.     This  action  was  commenced       /.-tV 
'■         June  24,  1904. 

J}\j      [i]  The  casethus  presented,  as  to  both  plaintiffs  then  before  the 
[  court,  the  question  of  the  effect  of  a  conveyance  of  all  the  interest 


y,  I  J     RIGHTS    PRIOR   TO   DISCOVERY.  .  105  ,     ^ 

of  eight  associates,  who  had  made  a  consohdated  location  oi   loo 
acres  as  an  oil  claim,  and  who  were  in  possession  thereof,  and  en- 
gaged in  the  work  of  development  to  discover  oil  thereon  in  a  certain     ^^^'^' 
designated  and  described  portion  thereof,  by  such  associates  to  an  ^tj'i^BkJ 
outsider,  before  the  location  had  been  perfected  by  a  discovery  of  ^^  a. 
oil.     It  was  squarely  held  that  such  a  conveyance  is  operative  to  .     I 
give  to  the  grantee  alPof  the  rights  which  the  grantors  formerly Tv<sa<v«-!i 
held  Tn  the  land  covered  thereby.    This  much,  of  course,  was  essen-c<»  (X.3 
tial  to  the  adjudication  in  favor  of  the  Merced  Oil  Mining  Company, /^^^^^ 
which  had  taken  possession  of  the  40  acres  covered  by  the  convey- 1/ 
ance    to    it,    and    thenceforth   had    prosecuted    development   work  t-*-^*-* 
thereon  to  a  discovery.    The  court  said:    "No  doubt  may  be  enter- ^nj>^  1^ 
tained  that  a  conveyance  such  as  this  may  be  made,  and  that  the  ^  f%,j, 
effect  of  such  conveyance,  if  such  be  its  expressed  intent,  is  to  h 
surrender  to  the  grantee  all  of  the  rights  which  the  grantors  f or- r'^"^"^ 
'      '  merly  enjoyed" —  that__is,  the  right  to  possession  against  all  illegal/.  ^4,^^ 
intriisioos — while  he  is  in  possession  diligently  prosecuting  his  work     ^  ^ 
^-    of  discovery,  and  the  right  to  obtain  a  perfected  location  by  a  suffi-  "'         i 
j__^j  cient  discovery  while  so  continuing  in  possession.     Such  a  convey-  '> 

ance_before_discoverx  is  not  an  abandonment  of  the  claim  as  to  the 
portion  conveyecf,  in  the  sense  that  such  portion  is  removed  from  the 
'Zr    protection  of  The  original  location  as  a  source  of  the  right  to  pos-^"^"*-   --' 
X^  session.     The  portion  so  conveyed  is  not  by  force  of  the  convey- ^vA^^ 
ance  rendered  vacant  and  unoccupied  mineral  land  open  for  new'"^^i^'^"~^^ 
entryT^^To  this  extent  cerfamly  the  law  of  the  case  is  established      "     ' 
--r^  by  the  decision  of  the  prior  appeal,  not  only  as  to  the  Alerced  OilC^xJt 
^>«*^  Mining  Company,  but  also  as  to  Castle,  for  the  question  involved  /      ^ 
^        is  one  of  the  questions  necessarily  presented  as  to  both  of  said  plain-     ^^^ 
Ja      tiffs.     The  opinion  determines  this  question  in  favor  of  both  said  (^  ^  }% 
yS^'  plaintiff's  in  the  manner  we  have  indicated,  and  the  views  expressed  ^ 
>-»      thereon  at  tliat  time  thus  became  the  law  of  the  case,  binding  on'^       *" 
f<      the  lower  court  on  the  retrial,  and  binding  upon  us  upon  this  appeal. UJirM^ 
yi  P?l.  W.ere  the  question  an  open  one,  however,  we  see  no  good  rea-  L/^. 

->^Sn  warrintfng  us  in  declaring  a  different  rule.     The  decision  was''  ^^^^ 
r^    in  line  with  the  earlier  case  of  Miller  v.  Chrisman^  140  Cal.  440,  73  Cc^*'v 
a^      Pac.  1083,  74  Pac.  444,  98  Am.  St.  Rep.  63.    The  latter  case,  it  is 
a^     true,  was  limited  to  the  effect  of  conveyances  of  undivided  interests^  \>Ca-) 
,     among  the  associates  themselves.    But,  so  far  as  this  matter  is  con-  .        f 
*^    cerned,  we  see  no  difference  in  principle  between  such  conveyances^  \-/«S>-i 
•^  •   and  a  conveyance  by  the  associates  to  an  outsider  of  either  an  undi-  /  *  ^|' 
vided  interest  or  a  segregated  portion.    Such  objections  as  may  be^'*"*^ 
made  on  the  score  of  public  policy  or  the  policy  of  the  mining  laws  of  'i-kM-« 
the  United  States  would  appear  to  apply  equally  to  either.    It  was  1  ^  ^,^ 
said  in  Miller  v.  Chrisman,  supra :   "We  cannot  perceive  why  these    ^^, 
-^^;  ^  rights  (the  rights  of  associates  in  possession  under  such  a  claim)  may  W,  U 
not  in  good  faith  be  made  the  subject  of  a  conveyance  by  the  associ- i  JA^;  ^ 
ates  as  well  before  as  after  discovery.   There  is  certainly  nothing  in  ~    -y 


lOO  THE   DISCOVERY   OF   LODE   AND    PLACER    CLAIMS. 

,  r  X.  '  ,.^-  . 

the  expressed  law  upon  the  subject  to  lead  to  the  view  that  this  can- 
not be  done,  and  there  is  much  to  give  countenance  to  the  contrary 
conviction."  Whatever  argument  may  be  made  against  this  view,  we 
are  satisfied  that,  so  far  as  the  courts  of  this  state  are  concerned,  it 

l^ ,       must  be  held  to  be  a  rule  of  property  from  which  a  departure  should 

7  not  now  be  made.  This  was  fully  recognized  by  Chief  Justice  Beatty 
/  (who  dissented  in  Miller  v  .Chrisman,  supra)  by  his  concurrence  in 
the  opinion  filed  on  the  former  appeal  in  this  case.  It  is  likewise 
to  be  noted  that  in  affirming  the  judgment  of  this  court  in  Miller  v. 
Chrisman,  supra,  the  Supreme  Court  of  the  United  States  said  noth- 
ing inconsistent  with  what  had  been  said  by  this  court  on  this  ques- 
tion. Chrisman  v.  Miller,  197  U.  S.  313,  25  Sup.  Ct.  468,  49  L. 
Ed.  770. 

Upon  the  former  appeal  the  record  did  not  show,  anything  in 
regard  to  the  conveyance  to  the  Merced,  etc..  Company,  other  than 
that  it  was  an  absolute  conveyance  of  a  segregated  portion  for  a 
money  consideration.  It  was  held  that,  nothing  else  appearing,  the 
^xj,  segregated  portion  conveyed  must  thenceforth  be  held  to  be  a  sep- 
arate and  independent  claim,  without  further  connection  in  any 
^  way  with  the  remaining  portion,  \yith  the  result  that  asubsequent  dis- 
'  .  covery  upon  the  portion  conveyed  would  not  redound  to  the  benefit 
of  such  remaining  portion  and  thus  be  sufficient  to  validate  and  per- 
fect the  location  of  the  owners  thereof,  and  that  work  done  and 
money  expended  upon  the  portion  conveyed  would  not  be  a  suffi- 
cient compliance  with  the  laws  of  the  United  States  requiring  the 
performance  annually  of  work  of  a  certain  value,  as  to  the  remaining 
land.  But  the  court,  for  the  purposes  of  the  new  trial  ordered, 
was  very  clear  in  its  statement  of  the  circumstances  under  which 
a  different  conclusion  would  be  required. 

After  saying  that  the  conclusion  reached  expressed  the  condition 
that  must  obtain  where  "the  agreement  of  the  parties  goes  no  fur- 
ther than  to  a  bare  conveyance  of  the  grantor's  possessory  rights," 
the  court  said :  "But,  upon  the  other  hand,  by  convention  and  agree- 
ment of  the  parties,  a  radically  different  result  may  be  legally  ac- 
complished. No  one  would  question  but  that  the  associates  might 
authorize  a  stranger  to  their  interests  to  enter  upon  their  land  and 
sink  a  well,  agreeing,  in  the  event  of  a  discovery  of  oil,  to  convey  to 
such  person  any  designated  portion  of  the  claim.  In  such  case, 
clearly  the  work  would  be  done  for  the  benefit  of  all  the  associates 
and  of  the  whole  claim.  It  cannot  make  any  difference  that  the 
conveyance  to  the  party  who  is  so  to  develop  the  land  is  made  before 
or  after  discovery,  provided  that  it  be  understood  between  them,  as 
part  of  the  consideration,  that  the  work  done  and  the  discovery  when 
made  shall  be  for  the  benefit  of  the  whole  claim.  As  parol  evidence 
is  always  received  to  show  the  true  consideration  of  a  contract,  this 
part  of  the  consideration  may  rest  upon  an  oral  agreement  of  the 
parties  and  need  not  therefore  be  embodied  in  the  deed.     *     *     * 


UiuiiiS    i'KiuR    10   DISCOVERY.  IO7    J  ^.^ 

No  reason  is  perceived  why  the  parties  may  not  make  a  conveyance  ^ ,  "^ 
of  a  divided  as  well  as  an  undivided  interest,  to  the  end  that  the  ^H-^^ 
grantee  may  prosecute  the  work  of  discovery  for  the  benefit  of  all.  J^  ^  » 
*  *  *  Coming  to  apply  this  principle  to  the  facts  in  this  case,  "T 
if  as  a  part  of  the  consjderaiioa-of_the^  deed  to  the  Merced  Oil.W  C^ 
Mining  Company  it  was  understood  and  agreed  between  the  parties, -j___^. 
that  the  labor  done  and  money  expended  upon  the  Merced  Com-  » 

pany's  40  acres  should  operate  for  the  benefit  of  the  land  remaining  ^^^  ^ 
in  the  possession  of  the   associates,   such   effect   would  be   legally  <;fc*».«** 
given.     And,  in  turn,  the  value  of  the  work  and  the  resulting  dis-  4^^^^ 
covery  would  redound  to  the  benefit  of  all  subsequent  grantees  of 
the  associates."  P^t»>y 

[3]   It  cannot  be   seriously  c|uestioned  that  the  findings  of  the  ' 
trial  court  on  the  retrial  clearly  bring  this  case,  as  to  the  Castle  40  *^'*'^''^ 
acres,  within  the  rule  thus  declared.     Some  point  is  made  of  the  Udv  |k 
fact  found  that  the  first  conveyance  by  the  associates  was  to  one  ■*»       , 
Harris,  instead  of  to  the  Merced  Oil,  etc.,  Company  and  that  such   '^ 
company  which  was  the  immediate  grantee  of  Harris   instead  of  ^-v^    C 
the  associates  and  which  had  not  been  organized  at  the  time  of  the  rJ(Ji^i 
conveyance  to  Harris,  never  agreed  to  do  the  development  work        i 
for  the  benefit  of  the  associates,  and  that  Harris  never  personally  ^p 
assumed  any  such  undertaking,  but  only  agreed  that  the  company  to  ^/"^"^ 
be  organized  should  do  so.     There  is  no  force  in  this  claim.     The    "c',e». 
findings  clearly  show  that  it  was  agreed  at  and  before  the  time  of  i 
the  conveyance  to  Harris,  between  the  associates  on  the  one  side  ^^--f.^*. 
and  Harris  and  four  other  persons  (one  of  whom  was  Castle)  on^J^^^ 
the  other,  as  a  part  of  the  consideration  for  the  execution  and  de-       k 
livery  of  the  deed,  that  Harris  and  his  associates  would  organize  ^^''^^ 
such  corporation ;  that  Harris   would   convey  the  property  to  the    *  ^  ^ 
corporation  immediately  upon  its  organization  ;  that  such  corpora- 
tion would  thereupon  immediately  occupy  the  land  and  proceed  dili-  ^  ■ 
gently  with  the  work  of  exploration  for  oil  thereon;  that  the  labor    ,  -•   *J 
done  and  the  money  expended  by  it  on  such  land  should  operate  for 
the  benefit  of  the  remaining  land  and  all  subsequent  grantees  thereof ;  '*' 

and  that  any  discovery  of  oil  thereon  should  operate  to  the  benefit  ") 

of  the  remaining  land  in  the  way  of  perfecting  the  location  of  the  ^^^    , 
original   associates  and  their  subsequent  grantees.     They  further    /'^.»* 
show  that  the  course  of  procedure  thus  agreed  upon,  to  use  the  ^  p  i 
language  of  counsel  for  respondent,  "was  adopted,  acted  upon,  and  "^     i/. 
carried   into  execution   in   full  compliance   with  the  understanding  *v<. 
and  intention  of  all  of  the  parties."     Harris  did  exactly  what  he  [^  ^<. 
agreed  to  do  as  a  part  of  the  consideration  for  the  deed,  and  the  / 
corporation    subsequently    organized    has    done    exactly    what    he^-^*"! 
agreed,  as  a  part  of  such  consideration,  that  it  would  do  in  the^g^,^^ 
matter   of   occupying,   exploring   for,   and   developing  oil   thereon... 
Regardless  of  all  question  whether  the  corporation  was  in  any  way     ,  "^ 
■^         bound  by  the  undertaking  of   Harris  to  the  associates,   we  have       '    ' 


;^^^"\I08  THE  DISCOVERY   OF   LODE   AND    PLACER    CLAIMS. 

^^^  .  that  undertaking  fully  satisfied,  and  the  consideration  agreed  upon 
'  '"  executed.  In  all  other  respects  the  findings  of  the  retrial  are  the 
_P(,^A ,  /  g^j^g  ^g  ^^Qy  Yvere  on  the  first  trial. 

^_^^-i.  Assuming,  as  contended  by  learned  counsel  for  appellants,  that 
i7v»>-p^,.  what  was  said  on  the  former  appeal  as  to  the  effect  of  such  an 
undertaking  by  the  purchaser  in  part  consideration  of  the  sale  is 
not  the  law  of  the  case,  we  have  upon  this  appeal  simply  the  ques- 
p.^,^  tion  whether  we  should  adhere  to  the  views  thus  expressed. 
■^  [4]   It  is  the  estabUshed   rule,  as  declared  in  Miller  v.   Chris- 

*;         man,  supra,  that  a  location  made  by  an  association  of  persons,  be- 
(7^.       ing  but  a  single  location  and  not  eight  separate  locations,  is  to  be 
A        treated    as    an    entirety    under    one    location    for    all    purposes    of 
'^'^     marking  boundaries,  doing  assessment  work,  expenditure  for  pat- 
jf-fA     ent,  and  discovery  of  oil,  and  that  but  a  single  discovery  is  all 
'\jLi     ^^^^^  ^^  required  to  support  it.     We  see  no  good  reason  why  the 
associates  may  not  maintain  this  condition  of  entirety  for  such  pur- 
€^      poses,  for  the  benefit  of  themselves  and  their  successors,  notwith- 
_^  »        standing  their  conveyance  of  a  segregated  portion  under  such  cir- 
'^»-»«*-     cumstances  as  are  disclosed  by  the  findings  in  this  case.    The  con- 
^         veyance  was  made  in  consideration  of  the  undertaking  to  do  the 
f^"      discovery  work  for  the  benefit  of  the  associates  and  their  grantees. 
By  reason  of  that  undertaking,  the  grantee,  while  possessing  all 
tfi^'l      the  rights  of  the  associates  as  to  the  portion  conveyed,  was  sub- 
mtJ      stantially  and  in  effect  the  agent  of  the  associates  for  the  purpose 
^v .     of  doing  the  necessary  work  and  making  such  a  discovery  as  would 
perfect  the  original  location  as  an  entirety.     As  was  pointed  out 
in  the  former  opinion,  the  only  difference  between  such  a  grantee 
and  one  to  whom  a  conveyance  of  a  segregated  portion  has  been 
promised  upon  a  discovery  by  him  sufficient  to  perfect  the  loca- 
tion  is   that  he   has  been  paid   his   consideration   in   advance.      In 
both  cases  the  work  is  being  done  "for  the  benefit  of  all  the  as- 
.   ,  sociates  and  of  the  whole  claim."    For  the  purposes  we  have  speci- 
j^^j      fied,  it  is  the  work  of  the  associates.     We  are  of  the  view  that  the 
^    former  opinion  correctly  states  the  law  on  this  question,  and  should 
^       be  adhered  to.     We  find  nothing  in  McLemore  v.  Express  Oil  Co., 
I   j^,^.  158  Cal.  559,   112  Pac.  59,  that  is  at  all  inconsistent  with  either 
^  Miller  v.  Chrisman,  supra,  or  our  decision  on  the  former  appeal 
in  this   case,  nor  can  we  perceive  that  it   involved  any  question 
%fJY>  material  here. 
J  As  we  have  said,  the  defendants  claim  under  an  entry  macie_jn 

-^  1904.  At  that  time,  in  view  of  what  we  have  already  said,  the 
/ynJ^  location  had  long  since  been  perfected  as  to  the  entire  160  acres, 
including  the  portion  conveyed  to  Castle  by  the  associates,  by  a 
"^^  '  sufficient  discovery  of  oil  on  the  portion  held  by  the  Merced  Com- 
i*Ay'i!\  pany.  We  are  not  concerned  here  with  any  question  as  to  the 
effect  of  Castle's  lack  of  personal  possession  of  the  portion  con- 
^^       veyed  to  him,  pending  such  discovery,  for  there  was  no  attempted 


U 


WHAT  CONSTITUTES   DISCOVERY.  lOg   ^'-'^''^ft 

entry  by  defendants  during  such  period.     After  the  entire  location 
had  been  perfected  by  discovery,  such  actual  possession  was  not  / 
essential  to  the  protection  of  his   rights.     As   we  understand  the '^'^■■■**^ 
record,  it  is  not  questioned  that  the  necessary  assessment  work  has  ^Xj*^ 
been   done  on  the   Merced   Company's   portion   of  the    i6o  acres  e>-t  tn. 
each  year  since  the  discoverv  of  oil  in  1900,  to  and  including  the   '.-.  v., 

year  1903.  '  ^   .  ,,  ./-',:,, 

The  judgment  is  affirmed. ^^  -^    <^>-<$.  -^  * w '^  •"- '  '     (/> 

Section  2.— What  Constitutes  Discovery.  v^v-^-t^vA-S" ^  a  t 

WATERLOO  MIN.  CO.  vl  DOE  et  al.  ,^  -^c^-J^^^ 

1893.     Circuit  Court,  S.  D.  California.     56  Fed.  685.  •'h<^^^ 

Proceeding  by  the  Waterloo  Mining  Company  against  John  S.    ^ 
Doe,  James  L.  Patterson,  and  Diedrich  Bahten  to  determine  the  right  ^""^-^^ 
to  a  mining  claim.     Decree  declaring  that  neither  party  is  entitled  to   tt/iM 
the  disputed  ground.  'h.^x  e- 

Ross,  District  Judge.-* — *  *  *  j  \hmk  it  clear  from  the  evi-  "^  ' 
dence  that  neither  at  the  time  of  Bahten's  location  of  the  Oregon  No.  ^ro^ 
3,  nor  at  the  time  of  its  relocation  by  his  grantee,  the  respondent  Doe,  u,vA.t5^ 
had  there  been  discovered,  nor  has  there  yet  been  discovered,  so  fari^  <sa. 
as  the  evidence  shows,  any  vein  or  lode  of  quartz  or  other  rock  in  ;, 
place  within  the  boundaries  of  the  claim. 

As  has  been  already  observed,  Bahten  himself  admits  in  his  testi-|  i-*^'-^ 
mony  that  at  the  time  his  location  was  made  there  had  been  no  suchv^trwV 
discovery  made,  but  that  the  claim  was  located  "in  the  hope  of  find-  1  / 
ing  some  ore  in  it  at  some  time;"  and  the  testimony  of  Mr.  John  f  t^ 
Hays  Hammond,  a  mining  engineer  of  much  learning  and  experi-c*^^  f 
ence,  and  who  made  a  critical  examination  of  the  ground  shortly  be-  *5ii-vOi 
fore  giving  his  testimony,  shows  clearly  that  no  vein  or  lode  has  yet  J,  ^v  , 
been  discovered  within  the  boundaries  of  the  claim;  that  there  are'^*'^, 
no  outcroppings  of  any  vein  or  lode  upon  the  surface  of  the  ground ;  |-^~f^^A^  ■ 
and  the  little  exploration  that  has  been  made  by  means  of  cuts,  a  . 

small  tunnel,  and  a  shallow  shaft  has  failed  to  disclose  any  such  vein  .^ 
or  lode.     It  is  quite  true  that  from  one  or  more  of  the  cuts  Stevens  <^   /  ^ 
extracted  the  ore  already  mentioned,  and  that  other  mineral-bearing    ^^^    ^* 
rock  exists  in  them,  samples  of  which  were  introduced  in  evidence  f\  j^ 
as  exhibits  in  this  case.     But  the  testimony  of  Hammond,  which  is  /Tfe-^** 
not  overcome  or  impaired  by  that  of  Tucker,  Patterson,  Scupham,  or  rT^^ 
any  other  witness,  shows  that  it  did  not  come  from  any  defined  vein  ^»  '  ^ 
or  lode,  so  far  as  can  be  ascertained  from  developments  so  far  made.  '^•^ 
It  is  obvious  that  without  the  discovery  of  a  vein  or  lode  the  ground 
in  question  was  not  subject  to  location  as  a  mining  lode  claim.     I  am 


'a  See  federal  statute  of  March  2,  1911,  quoted  in  appendix  post  p.  801.        ,;   •    '"''' 
*  Part  only  of  the  opinion  is  given.  >'    V  x*i 


*^  1 10  THE   DISCOVERY   OF    LODE    AND   PLA'cER    CLAIMS, 

»  N  r     therefore  of  opinion  that  neither  party  to  the  suit  is  entitled  to  enter 
the  ground  embraced  within  the  boundaries  of  the  Oregon  No.  3  as 
J^  ^.  ■.    a  mining  claim. 
^  A  decree  in  accordance  with  these  views  will  be  entered. 

*-'-^      "  A  i  /  / 

.,,^,e^t>     ^,^,:e^u^CHRISMAN  V.MILLER. 

/jv-vJfm^       1905.     Supreme  Court  of  the  United  States. 
4  C<iL-.C[iM  "     197  U.  S.  313,  49  L.  ed.  770,  25  Sup.  Ct.  468. 

f  Y^  In  error  to  the  Supreme  Court  of  the  State  of  California  to  re- 
/VXK.^  view  a  judgment  which  affirmed  a  judgment  of  the  Superior  Court 
Cv  of  Fresno  County  in  that  state  in  favor  of  plaintiffs  in  an  action  to 
^^     f    quiet  title  to  mineral  lands.     Aifirmed. 

X        '     See  same  case  below,  140  Cal.  440,  98  Am.  St.  Rep.  63,  y^  Pac. 
'^-f     1083,  74  Pac.  444. 

Mr.  Justice  BREWER  delivered  the  opinion  of  the  court. ^ 

In  cases  coming  from  a  state  court  we  do  not  review  questions  of 

fact,  but  accept  the  conclusions  of  the  state  tribunals  as  final.     Clip- 

/^r       per  Min.  Co.  v.  EH-  Min.  &  Land  Co.,  194  U.  S.  220,  48  L.  ed.  944, 

— w,^      24  Sup.  Ct.  Rep.  632,  and  cases  cited  in  the  opinion ;  Kaufman  v. 

I    ,  '    Treadivay,  195  U.  S.  271,  ante,  p.  33,  25  Sup.  Ct.  Rep.  33 ;  Smiley  v. 

V-^^- Kansas,  196  U.  S.  447,  ante,  p.  289,  25  Sup.  Ct.  Rep.  289. 

p  By  the  findings  of  the  trial  court  the  Chrismans,  plaintiffs  in  error, 

^       •  never  made  any  discovery  of  petroleum  or  other  mineral  oil,  did  not 

'  <w.c^make  the  attempted  location  in  good  faith,  and  never  did  any  work 

^         on  the  tract.     These  findings  were  of  date  June  24,  1899,  nearly  two 

4^  ^    years  and  a  half  after  their  attempted  location.     It  would  seem  from 

these  facts  that  they  had  no  pretense  of  right  to  the  premises. 
\MtA  It  is  contended,  however,  that  the  supreme  court,  in  its  opinion, 
V  ^^  practically  set  aside  these  findings  in  one  respect,  and  that  is  the  dis- 
'^'^•^^  covery  of  petroleum.  We  do  not  so  understand  that  opinion.  The 
jg  ^,  only  reference  made  to  the  matter  is  in  these  words:  "The  alleged 
discovery  of  defendants  under  their  location  may  be  disposed  of  in 
'*'"/'  a  single  sentence.  It  amounted  to  no  more  than  the  pretended  dis- 
v^,  covery  by  Barieau ;"  and  in  reference  to  Barieau's  alleged  discovery 
the  court  said : 


"73 


^  ^\ 


pJiJ\}  rieati  himself.     Giving  fullest  weight  to  that  testimony,  it  amounts 
^"^^  '^  The  statement  of  facts  is  omitted.        1       v  i    /  >i 

.  J  U4  6tn^  U^  j^Uict^  t^l^O  ^-^TK-ii  ^   5  --j^^  ^ 
«.     «-,  U>Ct>  li  iff^  l^^ir-fU^  .^,t,'A^    IxAjUL^    CU'vfc. 


WHAT    CONSTITUTES   DISCOVERY,  III 

to  no  more  than  this,  that  Barieau  had  walked  over  the  land  at  the  /"H>-^ 
time  he  posted  his  notice,  and  had  discovered  'indications'  of  petro-  ^^^'"^ 
leum.     Specifically,  he  says  that  he  saw  a  spring,  and  'the  oil  comes         ^ 
out  and  floats  over  the  water  in  the  summer  time,  when  it  is  hot.     In  $  /p^^-w 
June,  1895,  there  was  a  little  water  with  oil  and  a  little  oil  with  water  ^'^,^i_^ 
coming  out.     It  was  dripping  over  a  rock  about  2  feet  high.     There 
was  no  pool;  it  was  just  dripping  a  little  water  and  oil,  not  mucli^    >v<-eN 
water.'     This  is  all  the  'discovery'  which  it  is  even  pretended  was  ^,,.^y^ 
made  under  the  Barieau  location."  *" 

There  is^  nothing  in  this  language  from  which  it  can  be  inferred  ^II^uaa.  I 
that  the  supreme  court  of  the  state  set  aside  the  finding  of  the  trial    i#  /j 
court.     All  that  it  said  was  in  answer  to  the  contention  of  the  de-       ^ 
fendants  that  they  had  made  a  discovery,  and  that  contention  the  A>-)C  , 
supreme  court  repudiated,  leaving  the  finding  of  fact  to  stand  as  it 
was  made  by  the  trial  court. 

It  is  further  contended  that  the  location  made  by  Barieau  and  his 
associates,  and  conveyed  by  them  to  Miller,  did  not  lapse  until  mid- 
night of  December  31,  1896 ;  that  then  it  lapsed  by  reason  of  the  fail- 
ure to  do  the  annual  work  required  by  statute ;  that  Miller  could  not 
prior  thereto  abandon  and  relinquish  that  location,  and  at  the  same 
time  make  a  new  one,  as  he  attempted  to  do  on  the  afternoon  of  De- 
cember 31,  because  the  effect  of  such  action  would  be  to  continue  a 
possessory  right  to  the  tracts  without  compliance  with  the  statutory 
requirement  of  work.  Hence,  as  contended,  the  only  valid  location 
was  that  made  on  January  i,  1897,  by  the  defendants.  It  may  be 
doubted  whether,  in  view  of  their  want  of  good  faith,  the  defendant's 
can  avail  themselves  of  their  contention,  and,  indeed,  also  doubted 
whether  they  could  uphold  their  location  by  proof  of  a  discovery  by 
some  other  party.  But  it  has  no  foundation  in  fact,  for,  as  found  by 
the  trial  and  held  by  the  supreme  court  of  the  state,  the  attempted 
location  by  Barieau  and  his  associates  in  June,  1895,  was  a  failure  by 
reason  of  a  lack  of  discovery.  We  have  already  quoted  the  declara- 
tion of  the  supreme  court.  The  testimony  referred  to  in  that  quota- 
tion, even  if  true,  does  not  overthrow  the  finding.  It  does  not  estab- 
lish a  discovery.  It  only  suggests  a  possibility  of  mineral  of  suffi- 
cient amount  and  value  to  justify  further  exploration. 

By  29  Stat,  at  L.  p.  526,  chap.  216,  U.  S.  Comp.  Stat.  1901,  p. 
1434,  "lands  containing  petroleum  or  other  mineral  oils,  and  chiefly 
valuable  therefor,"  may  be  entered  and  patented  "under  the  provi- 
sions of  the  laws  relating  to  placer  mineral  claims."  By  §  2329,  Rev. 
Stat.  U.  S.  Comp.  Stat.  1901,  p.  1432,  placer  claims  are  "subject  to 
entry  and  patent,  under  like  circumstances  and  conditions,  and  upon 
similar  proceedings,  as  are  provided  for  vein  or  lode  claims."  By 
g  2320,  Rev.  Stat.  U.  S.  Comp.  Stat.  1901,  p.  1424,  "no  location  of  a 
mining  claim  shall  be  made  until  the  discovery  of  the  vein  or  lode 
within  the  limits  of  the  claim  located." 


112  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS. 

What  is  necessary  to  constitute  a  discovery  of  mineral  is  not  pre- 
scribed by  statute,  but  there  have  been  frequent  judicial  declarations 
in  respect  thereto.  In  United  States  v.  Iron  Silver  Min.  Co.  128  U. 
S.  673,  32  L.  ed.  571,  9  Sup.  Ct.  Rep.  195,  a  suit  brought  by  the 
United  States  to  set  aside  placer  patents  on  the  charge  that  the  pat- 
ented tracts  were  not  placer  mining  ground,  but  land  containing 
mineral  veins  or  lodes  of  great  value,  as  was  well  known  to  the  pat- 
entee on  his  application  for  the  patents,  we  said  (p.  683,  L.  ed.  p. 
575,  Sup.  Ct.  Rep.  p.  199)  : 

"It  appears  very  clearly  from  the  evidence  that  no  lodes  or  veins 
were  discovered  by  the  excavations  of  Sawyer  in  his  prospecting 
work,  and  that  his  lode  locations  were  made  upon  an  erroneous  opin- 
ion, and  not  upon  knowledge,  that  lodes  bearing  metal  were  disclosed 
by  them.  It  is  not  enough  that  there  may  have  been  some  indica- 
tions, by  outcroppings  on  the  surface,  of  the  existence  of  lodes  or 
veins  of  rock  in  place  bearing  gold  or  silver  or  other  metal,  to  justify 
their  designation  as  'known'  veins  or  lodes.  To  meet  that  designa- 
tion the  lodes  or  veins  must  be  clearly  ascertained,  and  be  of  such 
extent  as  to  render  the  land  more  valuable  on  that  account,  and  jus- 
tify the  exploitation.  Although  pits  and  shafts  had  been  sunk  in 
various  places,  and  what  are  termed  in  mining  cross-cuts  had  been 
run,  only  loose  gold  and  small  nuggets  had  been  found,  mingled  with 
earth,  sand,  and  gravel.  Lodes  and  veins  in  quartz  or  other  rock  in 
place  bearing  gold  or  silver  or  other  metal  were  not  disclosed  when 
the  application  for  the  patents  were  made." 

This  definition  was  accepted  as  correct  in  Iron  Silver  Min.  Co.  v. 
Mike  &  S.  Gold  &  Silver  Min.  Co.,  143  U.  S.  394,  36  L.  ed.  201,  12 
Sup.  Ct.  Rep,  543,  though  in  that  case  there  was  a  vigorous  dissent 
upon  questions  of  fact,  in  which  Mr.  Justice  Field,  speaking  for  the 
minority,  said  (p.  412,  L.  ed.  p.  207,  Sup.  Ct.  Rep.  p.  548)  :  "The 
mere  indication  or  presence  of  gold  or  silver  is  not  sufficient  to  estab- 
lish the  existence  of  a  lode.  The  mineral  must  exist  in  such  quanti- 
ties as  to  justify  expenditure  of  money  for  the  development  of  the 
mine  and  the  extraction  of  the  mineral."  And  again  (p.  424,  L.  ed. 
p.  211,  Sup.  Ct.  Rep.  p.  552)  :  "It  is  not  every  vein  or  lode  which 
may  show  traces  of  gold  or  silver  that  is  exempted  from  sale  or  pat- 
ent of  the  ground  embracing  it,  but  those  only  which  possess  these 
metals  in  such  quantity  as  to  enhance  the  value  of  the  land  and  invite 
the  expenditure  of  time  and  money  for  their  development.  No  pur- 
pose or  policy  would  be  subserved  by  excepting  from  sale  and  patent 
veins  and  lodes  yielding  no  remunerative  return  for  labor  expended 
upon  them." 

By  the  Land  Department  this  rule  has  been  laid  down  {Castle  v. 
Womhle,  19  Land  Dec.  455,  457)  : 

"Where  minerals  have  been  found,  and  the  evidence  is  of  such  a 
character  that  a  person  of  ordinary  prudence  would  be  justified  in 


WHAT   CONSTITUTES   DISCOVERY.  II3 

the  further  expenditure  of  his  labor  and  means,  with  a  reasonable 
prospect  of  success,  in  developing  a  valuable  mine,  the  requirements 
of  the  statute  have  been  met.  To  hold  otherwise  would  tend  to 
make  of  little  avail,  if  not  entirely  nugatory,  that  provision  of  the  law 
whereby  'all  valuable  mineral  deposits  in  lands  belonging  to  the 
United  States  .  .  .  are  .  .  .  declared  to  be  free  and  open 
to  exploration  and  purchase.'  " 

Some  cases  have  held  that  a  mere  willingness  on  the  part  of  the  lo- 
cator to  further  expend  his  labor  and  means  was  a  fair  criterion.  In 
respect  to  this  Lindley  on  Mines,  ist  ed.  §  336,  says: 

"But  it  would  seem  that  the  question  should  not  be  left  to  the  arbi- 
trary will  of  the  locator.  Willingness,  unless  evidenced  by  actual  ex- 
ploitation, would  be  a  mere  mental  state  which  could  not  be  satis- 
factorily proved.  The  facts  which  are  within  the  observation  of  the 
discoverer,  and  which  induce  him  to  locate,  should  be  such  as  would 
^justify  a  man  of  ordinary  prudence,  not  necessarily  a  skilled  miner, 
jlrTthe  expenditure  of  his  time  and  money  in  the  development  of  the 
property." 

It  is  true  that,  when  the  controversy  is  between  two  mineral  claim- 
ants, the  rule  respecting  the  sufficiency  of  a  discovery  of  mineral  is 
more  liberal  than  when  it  is  between  a  mineral  claimant  and  one 
seeking  to  make  an  agricultural  entry,  for  the  reason  that  where  land 
is  sought  to  be  taken  out  of  the  category  of  agricultural  lands  the 
evidence  of  its  mineral  character  should  be  reasonably  clear,  while  in 
respect  to  mineral  lands,  in  a  controversy  between  claimants,  the 
question  is  simply  which  is  entitled  to  priority.  That,  it  is  true,  is 
the  case  before  us.  But  even  in  such  a  case,  as  shown  by  the  author- 
ities we  have  cited,  there  must  be  such  a  discovery  of  mineral  as 
gives  reasonable  evidence  of  the  fact,  either  that  there  is  a  vein  or 
lode  carrying  the  precious  mineral,  or,  if  it  be  claimed  as  placer 
ground,  that  it  is  valuable  for  such  mining. 

Giving  full  weight  to  the  testimony  of  Barieau,  we  should  not  be 
justified,  even  in  a  case  coming  from  a  Federal  court,  in  overthrow- 
ing the  finding  that  he  made  no  discovery.  There  was  not  enough  in 
what  he  claims  to  have  seen  to  have  justified  a  prudent  person  in  the 
expenditure  of  money  and  labor  in  exploitation  for  petroleum.  It 
merely  suggested  a  possibility  that  the  ground  contained  oil  sufficient 
to  make  it  "chiefly  valuable  therefor."  If  that  be  true  were  the  case 
one  coming  from  a  Federal  court,  a  fortiori  must  it  be  true  when  the 
case  comes  to  us  from  a  state  court,  whose  findings  of  fact  we  have 
so  often  held  to  be  conclusive. 

The  judgment  of  the  Supreme  Court  of  California  is  .aMrmed.^^ 

■^^''Tt  is  the  common  experience  of  persons  of  ordinary  intelligence  that 
petroleum  in  valuable  quantities  is  not  found  on  the  surface  of  the  ground, 
nor  is  it  found  in  paying  quantities  seeping  from  the  earth.  Valuable  oil  is 
found  by  drilling  or  boring  into  the  interior  of  the  earth,  and  either  flows  or 
is  pumped  to  the  surface ;  and  until  some  body  or  vein  has  been  discovered 

8 — Mining  Law 


.      ^     114  THE   DISCOVERY   OF    LODE    AND    PLACER    CLAIMS. 

^a,  Vwrt'Cfi    /^cf^rFOX  ET  AL.  V.  MYERS  et  al. 

1,^  ^0iJM^  ^^^^      Supreme  Court  of  Nevada.     29  Nev.  169,  86  Pac.  793. 

NoRCROSS,  J.^ — This  is  an  action  of  ejectment  to  recover  posses- 
'    sion  of  a  certain  mining  claim  in  Goldfield  mining  district,  Esmeralda 
^Q        county.    Upon  the  trial  of  the  cause  in  the  court  below,  after  plain- 
tiffs had  ofifered  their  evidence,  counsel  for  respondents  interposed 
"-^-^^     a  motion  for  a  nonsuit.    The  motion  was  granted,  and  judgment  en- 
^■'   -       tered  accordingly.   Plaintififs  appeal  from  the  judgment,  and  from  an 
order  denying  their  motion  for  a  new  trial. 
/  The  allegations  of  plaintiffs'  complaint  which  are  material  in  the 

Cv  >  consideration  of  the  questions  presented  upon  this  appeal,  are  sub- 
f*»  stantially  as  follows :  That  on  the  28th  day  of  May,  1903,  the  said 
fl'  plaintiff' Carl  Schmidt,  for  himself,  and  on  behalf  of  the  other  said 
[  ^  plaintiffs,  located,  in  accordance  with  the  mining  laws,  a  certain  min- 
:,* /i^.Jng  claim  in  Goldfield  mining  district,  by  erecting  thereon  a  location 
k^  ,  ^  monument,  and  posting  a  location  notice  therein,  naming  and  desig- 
.  T  to'  ^  nating  said  claim  as  the  "Ramsey  Extension."  That  on  the  26th  day 
.g^V/  of  August,  1903,  while  plaintiffs  were  in  the  lawful  possession  of 
>  said  claim,  the  defendants  wrongfully,  unlawfully  and  fraudulently 

VCk.K  entered  into  and  upon  said  mining  claim,  and  by  their  wrongful,  un- 
(vf  lawful  and  fraudulent  acts  did  oust  and  eject  the  plaintiffs  from  the 
in  possession  of  said  mining  claim,   [which  they  located  as  the  Idol's 

rVvT. '  £yej  and  ever  since  said  time  have  continued  to  so  wrongfully,  un- 
lawfully, and  fraudulently  withhold  said  claim  from  the  plaintiffs. 
That  on  the  said  26th  of  August,  1903,  the  said  plaintiff  Fox,  for  and 
l^.v^'^on  behalf  of  himself  and  the  other  of  said  plaintiffs,  did  go  upon 
,  C  said  mining  claim  to  complete  the  location  of  the  same,  in  accordance 
with  the  requirements  of  law,  but  was  prevented  from  so  doing  by 
reason  of  the  aforesaid  wrongful  acts  of  defendants.  The  defend- 
^,j^  ants'  answer  consists  of  a  specific  denial  of  each  of  the  allegations 
J  of  the  complaint.     *     *     * 

n       The  trial  court,  in  ruling  upon  the  motion  for  a  nonsuit,  held  that 

■    the  plaintiffs  had  failed  to  'show  that  they  had  made  a  discovery  upon 

,     which  a  mining  location  could  be  based.     *     *     * 

c*^n      In  considering  the  question  whether  the  evidence  produced  by  the 

'  plaintiffs  was  sufficient  to  establish  the  fact  of  a  discovery  by  them 

J  upon  the  Ramsey  Extension  claim,  it  must  be  understood  that  the 

'''  evidence  is  to  be  tested  by  the  rules  governing  in  the  case  of  rival 

claimants  to  the  same  mining  ground,  taken  in  connection  with  the 

'     liberality  with  which  evidence  is  construed  in  favor  of  the  plaintiffs 

''    ■    '"■      from  which  the  oil  can  be  brought  to  the  surface,  it  cannot  be  considered  of  )/ 
^mx-,J?      sufficient  importance  to  warrant  a  location  under  the  mineral   laws. '—Bur- //J 

ford,  C    J.  in  Bay  v.  Oklahoma  Southern  Gas  Oil  &  Min.  Co.,  13  Okla.  425,// 

436,  73  Pac.  936,  940. 

'  Parts  of  the  opinion  are  omitted. 


t>t 


^       ,^:'^^  ^      WHAT  CONSTITUTES  DISCOVERY.  II5    ^-^-^f,- 

on  a  motion  for  a  nonsuit.  Upon  the  latter  proposition,  this  court  in  ||,t  u 
■^  the  case  of  Patchen  v.  Keeley,  19  Nev.  409,  14  Pac.  347,  had  occasion  fj)^,ti^ 
^'  to  say:  "In  considering  the  court's  ruHng  in  granting  the  nonsuit, 
L  we  must  take  as  proven  every  fact  which  the  plaintiff's  evidence  Kfeaj€, 
■  tended  to  prove  and  which  was  essential  to  his  recovery,  and  give  ^  *^^ 
I  him  the  benefit  of  all  legal  presumptions  arising  from  the  evi-  ^j,^^_^  tj- 
dence."     *     *     *  iP  U, 

'T  In  Migeon  v.  Montana  Cent.  Ry.  Co.,  yy  Fed.  254,  23  C.  C.  A.  161,  '^^ 

the  United  Stale's  Circuit  Court  of  Appeals,  in  an  opinion  written  by  -'2-*-'»-'xrv 
""'Tj  J^^fe^  Hawley,  points  out  in  the  following  manner  the  distinction  ciJi^  ^ 
9^^  that  exists  in  various  classes  of  cases,  upon  the  question  of  the  proof  ct  \J^ 
^^^  that  will  be  required  to  establish  a  discovery :  "There  are  four  classes  i,^^rXj 
»*Ti^Qf  cases  where  the  courts  have  been  called  upon  to  determine  what 

\j^  a  lode  or  vein  within  the  intent  of  different  sections  of  p^^ 

^^^,  the  Revised  Statutes:  (i)  Between  miners  who  have  located  claims  \^  o  ^ 
^ — -on  the  same  lode,  under  the  provisions  of  section  2320  [U.  S.  Comp.  ^^^^^^^^^ 
yS^  St.  1901,  p.  1424].    (2)    Between  placer  and  lode  claimants  under  the  ,     , 

tX'  provisions  of  section  2333  [U.  S.  Comp.  St.  1901,  p.  1433]  •    (3)    Be-  V^^-^ 
■'^        tween  mineral  claimants  and  parties  holding  townsite  patents  to  the  J^  I** 
same  ground.    (4)    Between  mineral  and  agricultural  claimants  of  *f^U^ 
the  same  land.   The  mining  laws  of  the  United  States  were  drafted        & 
for  the  purpose  of  protecting  the  bona  fide  locators  of  mining  ground  ^,^/U 
^  «      and  at  the  same  time  to  make  necessary  provisions  as  to  the  rights  of         v    ^ 
-»       agriculturists  and  claimants  of  townsite  lands.    The  object  of  each  Vv\.^w— 
'  •  *    section,  and  of  the  whole  policy  of  the  entire  statute,  should  not  be  ■  iri> 
overlooked.    The  particular  character  of  each  case  necessarily  deter-  -^  ».      r^ 
mines  the  rights  of  the  respective  parties,  and  must  be  kept  con-  '    » 
V  ^     stantly  in  view,  in  order  to  enable  the  court  to  arrive  at  a  correct  C-O-H^ 
i^  conclusion.   What  is  said  in  one  character  of  cases  may  or  may  not  l,^  i^ 
*^    be  applica.ble  in  the  other.   Whatever  variance,  if  any,  may  be  found 
~^^    in  the  views  expressed  in  the  different  decisions  touching  these  ques-  SU^^^ 
tions  arises  from  the  dift"erence  in  the  character  of  the  cases,  and  the  ff]  II 
advanced  knowledge  which  experience  in  the  trial  of  the  different      ^     . 
/     }    kinds  of  cases  brings  to  the  court.     =!=     *     *     The  fact  is  that  there  -  *"' 
^  /    is  a  substantial  difference  in  the  object  and  poHcy  of  the  law  between  p  ^-^^-^ 
^     the  cases  where  the  determination  of  the  question  as  to  what  consti-^^^j^ 
tutes  the  discoverv  of  a  vein  or  lode  between  different  claimants  of  ^^^^ 
"flXi  the  same  lode,  under  section  2320  [U.  S.  Comp.  St.  1901,  p.  I424]»   ,  .-Tj 
'  on  the  one  hand,  and  a  lode  known  to  exist  within  the  limits  of  a'^-M 

^  placer  claim  at  the  time  application  is  made  for  a  patent  therefor,  ^\  H^J 
^"     under  section  2333  [U.  S.  Comp.  St.  1901,  p.  1433],  on  the  other.  \ 

^<  *  *  *  The  question  as  to  what  constitutes  a  discovery  of  a  veui 
iCj.  01^  lode  under  the  provisions  of  section  2320  of  the  Revised  Statutes 
OJ^-[U.  S.  Comp.  St.  1901,  p.  1424]  has  been  decided  by  many  courts. 
Z^  All  the  authorities  cited  by  appellants  are  referred  to  in  Book  v.  Min- 
^«  ing  Co.  (C.  C.)  58  Fed.  106,  121.  The  liberal  rules  therein  an/^^  ^ 
'  ^    nounced  are  substantially  to  the  effect  that  when  a  locator  of  a  min-.T' 


».    *     Il6  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS, 

"^t^fii^    i^g  claim  finds  rock  in  place  containing  mineral  in  sufticient  quan-', 
!     u  '     tity  to  justify  him  in  expending  his  time  and  money  in  prospecting 
^  b  ^^^^^  and  developng  the  claim,  he  has  made  a  discovery  within  the  meaning 
[j>t-r      of  the  statute,  whether  the  rock  or  earth  is  rich  or  poor,  whether  it 
■>r^T>->   assays  high  or  low,  with  this  qualification:  that  the  definition  of  a 


U  u 


tn^,  ■ 


lode  must  always  have  special  reference  to  the  formation  and  peculiar 
,  -^""''characteristics  of  the  particular  district  in  which  the  lode  or  vein 
■'*^-  is  found.  It  was  never  intended  that  in  such  a  case  the  courts  should 
J^  •■  weigl-^  scales  to  determine  the  value  of  the  mineral  found  as  between  i 
K.  ja.  prior  and  subsequent  locator  of  a  mining  claim  on  the  samej 
'^Ir-^ode."  *  *  * 
^^^'^^  The  evidence  in  this  case  shows  that,  at  or  near  the  location  monu- 
,  V-^—  ment  of  the  Ramsey  Extension  claim,  there  was  an  outcropping,  and  \  ^ 
/  f  '!■  we  think  it  may  be  inferred  from  the  evidence  that  this  outcropping  * 
►  l^^-^-t carried  values.  We  think  it  also  may  be  inferred  from  the  evidence 
1^  tf^>  '  that  the  plaintiffs  intended  to  base  their  claim  of  a  discovery  upon 
'"  I  this  outcropping  when  they  erected  the  monument  and  posted  their 
'  notice  of  location  of  the  Ramsey  Extension  claim  upon  or  near  it. 

^^^^  It  is  not  necessary  to  determine  whether  this  state  of  facts  alone 
.  A^  would  be  sufficient  to  justify  the  trial  court  in  denying  the  motion 
'  for  a  nonsuit ;  but,  taken  in  connection  with  other  facts  which  are 

u^(^.     shown,  or  which  may  be  inferred  from  the  evidence,  we  think  the 
'^:  showing  was  sufficient  to  require  that  the  motion  be  denied.  The  con- 
tention  of  counsel  for  appellant  has  not  been  questioned  that  the  lo- 
cation monument  of  the  Idol's  Eye  claim  and  the  location  monument 
of  the  Ramsey  Extension  claim,  were  one  and  the  same.    This  fact 
rtJa»*U^  Vnay  be  inferred  from  the  evidence,  and  for  the  purposes  of  the  mo- 
!r'  M        tion  it  should  be  considered  as  an  established  fact.    Our  statute 
(^^  ,    (Comp.  Laws,  §  208)  requires  that  the  notice  of  location  be  posted 
V     jj^     "at  the  point  of  discovery."    Therefore,  when  a  locator  erects  a  lo- 
^  r^' cation  monument  and  puts  his  location  notice  thereon,  he,  in  effect, 
)  'irtVI    declares  that  at  that  point  he  has  made  a  discovery.    This  is  so  in 
^jf    order  that  another  prospector  going  upon  the  same  ground  may  not 
7^',       only  see  that  some  one  else  claims  to  have  initiated  a  location,  but 
*    'A       upon  what  discovery,  or  alleged  discovery,  if  any,  such  claim  is 
ryJ^K     based.     *     *     * 

y  Proof  of  posting  a  location  notice  at  a  certain  point,  containing  a  j 

'hJ''^^,   recital  therein  that  a  discovery  had  there  been  made,  as  in  the  case  / 
>-^  of  the  Ramsey  Extension  notice,  would  not  be  evidence  prima  facieiyr 

^\-^  of  a  discovery,  as  contended  for  by  counsel  for  appellant,  for  the  --^ 
'^'^1''  reason,  if  for  none  other,  that  the  statute  does  not  require  the  mak-| 
•tA"       ing  of  such  a  declaration  in  the  notice,   i  Lindley  on  Mines  (2d  Ed.)j 
^^yv^'        §  392;  2  Jones  on  Evidence,  §  521."     Proof,  however,  that  a  noticeJ 

'X   U  '•  '  In  Smith  v.  Newell,  86  Fed.  56,  60,  Marshall,  District  Judge,  said  of  a  loca-  \     -r 

tion  by  plaintiff  prior  to  the  location  of   defendants :     "On  this  point,  the  I   *-^ 
^"        plaintiff's  case  rests  on  the  theory  that,  a  record  of  a  location  and  the  mark-  ( 


y         '  WHAT    CONSTITUTES   DISCOVERY.  ^  II7   A^^ 

J  was  posted  at  a  certain  point  establishes  that  at  that  point  the  locator  i  V    '^ 
;  claims  a  discovery.   When  it  was  shown  that  the  Idol's  Eye  location  /jjj^^ 

r'  notice  was  placed  at  the  same  point  as  that  of  the  Ramsey  Extension,      ,.,      k. 

I    it  put  the  defendants  in  this  action  also  in  the  position  of  claiming         '  '■^ 
a  discovery  at  the  same  point  that  tlie  plaintiffs  did.  Both  sides  claim-  ,,  4 

ing  a  discovery  at  the  same  point  would  warrant  the  presumption,  in       °^ 
the  absence  of  a  showing  to  the  contrary,  that  both  based  their  claim  "T    H*. 
of  a  discovery  upon  the  same  natural  conditions,  and,  where  such  a  h^T^ 
showing  exists,  the  court  is  justified,  at  least  for  the  purpose  of  the  '"-  ^  ^ 
motion,  in  presuming  the  existence  of  a  discovery,  because  of  the  ^-V^  * 
fact  that  there  is,  in  effect,  an  admission  by  both  parties  that  such  /n     ji^, 
discovery_exists.    If  it  were  shown  that  a  person  had  posted  a  loca-  ^'» 
tToii  notice  where  there  were  no  indications  whatever  of  a  lode  or    ,  yj^ 
vein,  and  that  subsequently  another  person,  as  a  result  of  sinking  . 

a  shaft  at  that  point,  or  by  some  other  development  work,  had  dis-    ~>-0  K 
covered  a  vein  not  indicated  upon  the  surface  of  the  ground,  it  could      ,  U  ^ 
hardly  be  said  that  such  second  party  by  reason  of  the  fact  that  he 
posted  his  location  notice  at  the  same  point  as  the  first  claimant,    -C^ 
thereby  admitted  that  such  prior  claimant  had  also  there  made  a  dis-  . 

covery.  But  such  is  not  the  state  of  facts  disclosed  by  the  evidence  ^  ^ 
in  this  case.  Indulging  in  all  legal  presumptions,  and  construing  the  ;  [" 
evidence,  under  the  rule  heretofore  quoted,  most  favorably  in  favor  ^  ^  ^^ 
of  the  appellants,  we  are  compelled  to  say  that  the  evidence  war-  ''  V. 
rants  the  inference,  at  least,  that  both  parties  to  this  action  are  claim-  Ow  ^ 
ing  the  right  to  hold  the  ground  in  controversy  under  the  same  claim  ^yj^^, 
of  discovery.  Under  such  a  state  of  facts  the  evidence  upon  the  ^^  ^  / 
question  of  discovery  was  sufficient  upon  which  to  have  based  a  de-  "  ''•*'^ 
nial  of  the  motion  for  a  nonsuit.  _        .fv^  U 

For  the  reasons  given,  the  judgment  and  order  are  reversed,  with    ^^^^ 
directions  to  the  lower  court  to  grant  a  new  trial.  ^,,,^.^^d     kH»«-wJuS»-^ 

MURRAY  V.  WHITE  et  al.  ^  f\  ^"^^^'"flT^  S^  ^ 

1911.     Supreme  Court  of  Montana.     42  Mont.  423,  113  Pac.  754!  ^^^^_^^ 

Hollow  AY,  J.^ — This  suit  was  brought  by  Murray  to  enforce  the  c^-ZJi 
specific  performance  of  a  contract  to  convey  real  estate.  From  a  de-  ^  . 
cree  in  favor  of  plaintiff  and  from  an  order  denying  them  a  new  trial,  o^^ 
the  defendants  have  appealed.  -Xtf^ 

In  his  complaint  the  plaintiff  alleges  that  in  July,  1898,  he  and  the  ' 
defendant  White  each  had  an  application  before  the  Land  Depart-   4  >x. 
ment  of  the  United  States,  to  enter  the  S.  ^  S.  E.  i,  and  the  S.  E.  i  .^„ 

ing  of  it  on  the  ground  being  shown,  the  court  should  presume  a  discovery  of  C-j^-A^ 
a  vein.     I  do  not  think  such  a  presurnption  should  be  made."  i/C?'  /  / 

_,„/  Parts  'orTRe~opThion  are  omitted.  k   j  \    ''o*^"^'' 

<^\CJt  O-r-*-     '-V-O    *i^J.  r>J2ki^>V 

(2|  Th^  <iA^ao  nrvvM>^  i^^  jjv-*^.cwO  «^  ^%rif^  ^^""-^  r 


jLi 


rT/:    (tf  1  t.u  *.-'r^-^  u-^?x^  <?,^i.f  /-^f-^v^  'K:«  f  k  tK^  ff^jftx-^ 

Il8  THE   DISCOVERY    OF   LODE    AND    PLACER    CLAIMS. 

S.  W.  i  of  section  17,  township  3  N.,  range  7  W.,  in  Silver  Bow 
county ;  that  the  parties  were  claiming-  the  land  adversely,  and,  for 
the  purpose  of  effecting  a  compromise  and  facilitating  the  issuance 
of  patent,  they  entered  into  a  contract  by  the  terms  of  which  Murray 
agreed  to  relinquish  his  claim  to  the  S.  E.  i  S.  W.  i,  hereinafter 
called  the  west  forty,  and  the  S.  W.  i  S.  E.  i,  hereinafter  called  the 
middle  forty,  and  not  hinder  or  obstruct  the  issuance  of  patent  there- 
for to  White ;  and  White  agreed  to  relinquish  his  claim  to  the  S.  E.  :i 
A,,^  S.  E.  i,  hereinafter  called  the  east  forty,  and  not  thereafter  hinder 
\^'    Murray  in  securing  patent  to  that  portion  of  the  land.     *     *     * 
f<|^>— ^The  answer  of  the  defendant  White  does  not  deny  any  allegation  of 

ethe  complaint,  but  contains  four  separate  affirmative  defenses.    The 
N  material  allegations  of  these  defenses  were  denied  in  a  reply.    Upon 

n  the  trial  the  defendants  assumed  the  burden  of  proof.    The  trial 

u\  i  court  found  against  them  as  to  every  one  of  their  defenses,  and  the 
contention  now  is  that  the  evidence  preponderates  against  the  find- 
ings made. 

First  Defense.    It  is  alleged  that  the  contract  was  procured  by 

fraud,  misrepresentation,  and  unfair  practices  on  the  part  of  Mur- 

(^  ,^.  ray,  in  this  :    That  all  the  lands  were  agricultural  lands  of  the  United 

^^  States ;  that  White  had  a  bona  fide  application  before  the  United 

'-^     States  Land  Department  to  enter  such  lands  under  the  homestead 

}  (^J     laws ;  that  Murray  claimed  that  all  of  the  lands  contained  valuable 

"  deposits  of  placer  gold,  and  was  claiming  them  under  a  pretended 

/l./.^^^ location  thereof  as  a  placer  mining  claim,  whereas,  in  truth  and  in 

.jy^ej,    fact,  said  lands  did  not  contain  any  deposits  of  placer  gold  and  were 

'    nonmineral  in  character,  all  of  which  facts  were  well  known  to  Mur- 

-c-ot^>  ray  but  unknown  to  White ;  that  in  fact  Murray  did  not  have  any 

jN    claim  to  the  lands  ;  had  prior  thereto  relinquished  his  pretended  claim 

'*^*^to  the  east  forty  altogether,  and  permitted  others  to  locate  the  same ; 

*^Vv,  -  that,  for  the  purpose  of  deceiving  White  and  inducing  him  to  enter 

into  the  contract  in  question,  Murray  misrepresented  the  character 

^"^^      of  his  pretended  claim  to  the  west  and  middle  forties,  and  concealed 

^*vir  from  White  the  fact  that  he  had  no  claim  whatever  to  the  east  forty ; 

,       that  Murray  represented  that  he  had  a  good  and  valid  placer  loca- 

■^  ^^    tion  upon  the  lands  and  would  contest  and  litigate  with  White  for  the 

ja/7       lands ;  that,  relying  on,  and  believing  in,  Murray's  representations  as 

"X         to  the  character  of  his  claim,  and  to  avoid  the  threatened  litigation, 

'^^^<-r^  and  not  otherwise.  White  entered  into  the  agreement. 

jna^         (a)   Appellants  attack  Murray's  placer  location  as  being  fraudu- 

M^         lent.  THey  insist  that  the  evidence  shows  that  Murray  knew  that  the 

^^^   ground  was  nonmineral  in  character,  and  that  his  representation  to 

^C*.^-j  White  that  he  had  a  valid  placer  location  was  false,  and  made  with 

intent  to  deceive  White  and  induce  him  to  enter  into  the  contract. 

"^^       It  is  true  that  the  evidence  as  to  the  presence  of  minerals  in  the  \ 

*  ground  is  very  slight,  and  that  Murray  had  maintained  his  location rP, 

'^"^J       for  several  years  without  developing  a  paying  placer,  and^withoutj 


WHAT    CONSTITUTES   DISCOVERY.  IIQ 

,'  demonstrating  that  the  ground  was  in  fact  vakiable  for  the  minerals 
/  it  contained.  But  there  is  some  evidence  that  placer  gold  had  been 
discovered  in  the  ground,  the  surface  of  which  is  decomposed  gran- 
ite and  other  rock  washed  down  from  the  nearby  mountains.  All 
the  other  portions  of  section  17  have  been  patented  as  placer  loca- 
tions. The  ground  is  situated  near  the  great  quartz  mines  of  Butte, 
and  along  the  same  stream,  and  not  far  from  producing  placers.  The 
general  character  of  the  soil  and  the  location  of  the  ground  are  such 
as  to  indicate  the  presence  of  placer  gold.  Witnesses  expressed  the 
opinion  that  the  ground  could  be  mined  profitably  by  dredging.  Un- 
der these  circumstances  we  do,  not  think  that  it  can  be  said  that  the 
evidence  shows  such  a  degree  of  poverty  in  the  placer  claim  that 
Hurray'^s  assertion  of  that  claim  should  be  held  to  be  fraudulent. 
Neither  the  federal  nor  state  statutes  require  that,  to  constitute  a 
placer,  the  ground  shall  yield  any  specific  quantity  of  precious  metals. 
Neither  is  it  required  that  the  deposits  of  mineral  shall  be  sufficiently 
extensive  to  pay  operating  expenses,  in  order  to  locate  and  maintain 
a  valid  placer  claim. 

It  has  long  been  the  settled  rule  that,  to  constitute  a  discovery, 
within  the  meaning  of  that  term  as  used  in  mining  law,  it  is  sufficient 
that  precious  metals  be  found  in  the  ground  in  quantity  which  justi- 
fies the  locator  in  spending  his  time  and  money  in  prosecuting  de- 
velopment work,  with  the  reasonable  hope  or  expectation  of  finding 
mineral  in  payment  quantities.  Harrington  v.  Chambers,  3  Utah  94, 
I  Pac.  362 ;  Book  v.  Mining  Co.  (C.  C.)  58  Fed.  106;  Nevada  Sierra 
Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  676;  27  Cyc.  556;  Snyder 
on  Mines,  §§  349,  360;  Shreve  v.  Copper  Bell  M.  Co.,  11  Mont.  309, 
28  Pac.  315;  McShane  v.  Kenkle,  18  Mont.  208,  44  Pac.  979,  33  L. 
R.  A.  851,  56  Am.  St.  Rep.  579;  Noyes  v.  Clifford,  37  Mont.  138,  94 
Pac.  842.  The  precious  metals  are  not  evenly  distributed  through- 
out veins  or  placer  ground.  A  claim  may  be  barren  in  one  part,  poor 
in  another,  rich  in  another,  and  withal  very  valuable  as  a  whole,  so 
that  the  failure  of  the  locator  to  develop  a  paying  property  within 
any  given  time  is  not  conclusive  against  the  validity  of  his  claim.  It 
is  a  part  of  the  history  of  this  mining  region  that,  even  in  the  case 
of  a  placer  claim,  much  time  and  labor  must  be  expended  and  con- 
siderable expense  incurred  in  developing  a  paying  claim,  when  bed 
rock  is  covered  with  great  quantities  of  debris,  as  is  the  case  in  the 
present  instance.  The  evidence  shows  that  Murray  is  a  man  of  ex- 
perience in  mining  operations,  and  that  he  evidenced  his  faith  in  the 
validity  of  his  claim  by  the  expenditure  of  considerable  money  in 
sinking  shafts  in  attempts  to  reach  bed  rock,  where  he  expected  to 
find  placer  gold.  Furthermore,  White  had  an  equal  opportunity  with 
Murray  to  examine  the  soil,  determine  its  character,  and  decide  for 
himself  whether  Murray's  contention  that  the  land  was  mineral  in 
character  had  any  foundation  in  fact.  While  there  are  facts  and  cir- 
cumstances which  tend  to  discredit  Murray's  claim,  we  are  not  satis- 


I20  THE   DISCOVERY   OF   LODE   AND    PLACER    CLAIMS. 

fied  that  the  evidence  preponderates  against  the  trial  court's  find- 
ins".     ^     ^     ^ 

Fourth  Defense,  (a)  The  fourth  defense  is  based  upon  the  propo- 
sition that,  since  Murray  had  a  mineral  application  for  all  these  for- 
ties, and  White  had  an  agricultural  application  for  the  same  lands, 
there  could  not  be  a  lawful  compromise  of  their  claims  so  that  one 
could  receive  a  part  of  the  disputed  ground  under  a  mineral  applica- 
tion, and  the  other  the  remaining  portion  under  his  agricultural  ap- 
plication. In  their  brief  counsel  for  appellants  say :  "The  two  claims 
were  antagonistic  to  each  other ;  one  of  them  was  fraudulent  and  il- 
legal, based  on  false  testimony,  and  was  an  attempt  to  defraud  the 
government  of  the  United  States."  This  premise  is  clearly  erroneous, 
and  the  argument  based  upon  it,  of  course,  equally  so.  That  one 
person  in  perfect  good  faith  may  assert  a  mineral  application  for  a 
particular  parcel  of  public  land,  and  another  person,  equally  in  good 
faith,  may  assert  his  agricultural  application  for  the  same  ground, 
is  beyond  question.  The  same  land  may  be  valuable  for  both  mineral 
and  agricultural  purposes.  Its  mineral  value  may  be  slight,  and  un- 
der such  circumstances  it  is  a  question  of  fact  whether  it  is  mineral 
land  within  the  meaning  of  the  federal  statute.  Under  such  circum- 
stances the  controversy  is  settled  by  the  Land  Department,  by  deter- 
mining whether  the  land  is  more  valuable  for  the  one  purpose  or  the 
other.  Washington  v.  McBride,  i8  Land  Dec.  Dep.  Int.  199;  Swee-i 
ney  v.  Northern  Pacific  R.  R.  Co.,  20  Land  Dec.  Dep.  Int.  394; 
Walker  v.  Southern  Pacific  R.  R.  Co.,  24  Land  Dec.  Dep.  Int.  172. 

It  is  conceded  that,  as  between  rival  claimants  for  the  same  piece 
of  public  land,  a  compromise  of  their  dififerences  is  recognized — even 
encouraged — by  the  government ;  but  it  is  argued  that,  in  every  in- 
stance wherein  reference  was  made  to  this  well-known  rule,  both 
claimants  were  asserting  rights  under  the  same  general  character  of 
entry.  And  it  is  insisted  that  a  case  cannot  be  found  in  which  the 
government  recognized  the  right  of  one  claimant,  who  was  asserting 
title  under  a  mineral  location,  and  his  rival,  who  was  asserting  title 
under  an  agricultural  entry,  to  compromise  their  differences,  so  that 
one  could  secure  patent  to  a  portion  of  the  land  under  his  mineral 
application,  and  the  other  the  remaining  portion  under  his  agricul- 
tural entry ;  and  this  may  be  true,  but  the  fact,  if  it  is  a  fact,  that 
such  a  case  has  not  been  determined  can  scarcely  be  considered  evi- 
dence that  such  a  compromise  would  not  be  recognized  by  the  fed- 
eral authorities,  if  a  case  presenting  it  did  arise.  We  do  not  see  any 
difference  in  principle  between  a  case  of  this  kind  and  one  involving 
a  controversy  between  rival  claimants  under  the  same  character  of 
entry.  Of  course,  title  to  known  mineral  land  cannot  be  secured  un- 
der agricultural  entry  (section  2318,  Rev.  St.  U.  S.  [page  1423,  U.  S. 
Comp.  St.  1901]),  and  any  effort  on  the  part  of  rival  claimants  to 
secure  such  a  result  v/ould  be  defeated  as  an  attempted  fraud  on  the 
•government;  but  where,  as  in  the  case  before  us,  the  land  has  little 


-•-   —--^         .-^      WHAT    CONSTITUTES  DISCOVERY.  '  121 

value  for  either  purpose,  and  there  is  a  bona  fide  contest  involved  as 
to  the  particular  use  for  which  the  land  has  the  greater  value,  we  do 
not  see  any  objection  which  the  government  could  interpose  against  ^^* 
an  amicable  settlement  of  the  difficulty  by  a  division  of  the  land  be-  >%  > 
tween  the  rival  claimants.  Certainly  there  was  not  anything  done  ,  »,  '-. 
by  these  parties  which  precluded  the  government  from  making  an  in-  r"^^ 
vestigation  of  the  land  to  determine  its  character.     *     *     *  ^   ,  ,f 

We  do  not  find  that  anv  reversible  errors  were  committed.    The 


judgment  and  order  are  affirmed.  ^\    ^^s^     \ 

Affirmed  ^'^    4*^*M^    0*«v^v--M       | 


t^-=^  t-Vi> 


'^s^'-i^^^J^'^^J^^  %^i 


LANGE  V.  ROBINSON  et  al.  i^  ^i^v^  5-  f  , 

1906.     Circuit  Court  of  Appeals.     79  C.  C.  A.  i,  148  Fed.  799.       ^4'0 

Appeal  from  the  District  Court  of  the  United  States  for  the  Third    *-^    * 
Division  of  the  District  of  Alaska.  oA^ 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  De  Haven,  District  »^ 

Judge.  -^  C^ 

De  Haven,  District  Judge. ^     This  action  was  commenced  in  the     i  ^'  * 
District  Court  for  the  District  of  Alaska,  Third  Division,  for  the        l_ 
purpose  of  determining  that  the  plaintifif  is  the  owner  and  entitled    y^^^i 
to  the  possession  of  certain  mineral  lands,  to  which  the  defendants 
assert  an  §^lverse_clain3.     At  the  conclusion  of  the  evidence  offered  ^^^A-" 
by  the  plaintiff  the  defendants  moved  for  a  dismissal  of  the  action /* 
upon  the  ground  that  the  plaintiff    had  failed  to  show  that  he  had*'^*'*^'^ 
any  legal  or  equitable  estate  in  the  land  described  in  the  complaint,     >    ..^ 
and  for  the  further  reason  that  it  was  not  shown  that  he  was  in  pos- 
session of  such  land  at  the  date  of  the  commencement  of  the  action.  < 
The  motion  was  granted  upon  the  ground  first  stated,  and  it  was     ^^ 
thereupon  adjudged  that  the  action  be  "dismissed  without  prejudice 
against  the  plaintiff'  of  any  kind  w^hatsoever,"  the  defendants  to  re-    ^^T^ 
cover  costs.    From  this  judgment  the  plaintiff  has  appealed.                 'Qin.^H 

The   lands    in   controversy   embrace    10   separate   placer   mining  ^ 

claims,  containing  20  acres  each.     One  of  these  claims  was  located    S^  >v 
by  H.  W.  Benson,  grantor  of  plaintiff,  one  by  the  plaintiff  for  him-    uj* 
self  and  the  remaining  eight  by  the  plaintiff  acting  as  agent  for  "^'^■'^-* 
others,  who  have  since  conveyed  to  him.    The  locations  were  made 
on  April  15,  1905  ;  and  the  first  question  which  we  will  consider  is     ;  ; 
whethejijiriiltiJii-tl^  the  locators  had  mad^  .such  a  discovery    r  ^ 

of  gold  thereon  as  entitled  them  to  locate  the  lands  as  placer  mining    Lc/^ 
claims.     These  claims  are  situate  on  Cripple  creek  in  the  Fairbanks    ^  — ^ 
mining  district,  Alaska,  and  the  evidence  shows  that  prior  to  their   ""^ 
location  gold  had  been  found  on  Esther  creek,  a  tributary  of  Cripple    p  v , 
creek.     This  discovery  was  made  within  less  than  one  mile  from    ,.  ^ 

*  Parts  of  the  opinion  are  omitted.       Uwfl^CC     /  2-3         }r"t^sdU-4  t^T,    H«f» 


i" 


\  w 


p' 


122  THE   DISCOVERY   OF   LODE   AND   PLACER   CLAIMS. 

the  land  in  controversy.     In  Alaska,  as  indeed  in  all  places  where 
there  is  placer  gold,  it  is  almost  the  universal  rule  that  the  "pay 
streak,"  so  called,  is  in  and  upon,  or  near,  the  bed  rock ;  and  until 
that  is  reached  it  cannot  be  determined  whether  any  particular  claim  j^ 
contains  gold  in  such  quantity  as  to  be  of  value  for  placer  mining.  /Kl^ 
The  bed  rock  on  Esther  creek  is  from  90  to  100  feet  below  the  sux-y-jL 
face,  while  upon  the  land  involved  in  this  action  this  rock  is  from  I2§  X/^v 
to  150  feet  below  the  surface,  and  the  overlying  ground  is  of  no 
value ;  that  is,  it  does  not  contain  sufificient  gold  to  pay  for  working  5  ^^ 
it.    The  plaintiff  is  a  miner  of  many  years'  experience,  and  testified, /-2<ji^ 
in  substance,  that  before  making  his  locations  he  washed  upon  each  ^ ,  ^ 
claim  a  few  pie  plates  of  the  sediment  deposited  in  and  along  the"'^^ 
sides  of  the  creek  upon  which  the  claims  are  located,  and  found  in  ^  "  '"\ 
the  several  washings  from  two  to  six  fine  colors  of  gold.    This  was      ■  ■^' 
all  of  the  gold  actually  discovered  by  him  before  he  made  the  loca-    '  v.  . 
tions.     The  plaintiff  also  testified  that  his  belief  that  there  was  gold 
on  the  bed  rock  of  the  claims  located  by  him  was  based  upon  the 
colors  which  he  had  found,  and  the  further  facts  that  the  same  gen- 
eral character  of  sediment  deposit  and  rock  and  soil  formation  were 
found  on  these  claims  as  on  the  mineral  land  on  Esther  creek,  and 
that  in  all  localities  where  placer  mining  is  conducted,  wherever  gold 
is  found  on  the  surface,  there  will  be  more  or  less  on  the  bed  rock. 

*  He  also  stated  that  the  "pay  streak"  in  lands  of  this  character  is  nar- 
,     row,  and  usually  confined  within  the  limits  of  an  old  channel,  that  it 

is  often  found  necessary  to  sink  many  shafts  before  it  is  located, 
and  that  the  sinking  of  shafts  to  such  depths  as  is  required  upon  the 
lands  in  controversy  would  be  very  expensive.     In  addition  to  this, 

*  one  Field,  an  experienced  miner,  who  prospected  the  ground  after 
the  locations  had  been  made  by  plaintiff,  and  discovered  therein 
colors  of  fine  gold  such  as  were  found  by  plaintiff,  testified  as 
follows : 

"Q.  What  would  you  say  to  the  reasonableness  of  a  man's  pursuing  the 
work  of  prospecting  a  creek  where  he  found  such  indications  of  gold  as  you 
found  there  at  that  time,  as  to  whether  or  not  he  would  be  justified  in  doing 
so?" 

"A.  The  reasonableness?  Well,  it  is  looked  upon  as  a  business  proposition 
that  after  a  man  gets  surface  indication  such  as  you  find  down  there — that  it 
is  looked  upon  as  a  business  proposition  that  is  sufficient  to  justify  him  in  ex- 
pending time  and  money  in  exploring  it  further.  There  is  a  large  amount  of 
money  invested  under  those  conditions." 

I.  It  will  be  noticed  from  the  foregoing  statement  of  facts  that 
prior  to  making  the  locations  under  consideration  plaintiff  did  not 
actually  discover  gold  in  paying  quantities  upon  the  claim  located ; 
but  he  did  find  some  small  particles  of  gold  therein.  Was  this  suffi- 
cient to  give  to  the  plaintiff  the  right  to  locate  as  placer  mining 
claims  the  lands  upon  which  this  gold  was  found  ? 
.      The  question  as  to  what  constitutes  a  sufficient  discovery  upon 


'  WHAT   CONSTITUTES  *t)ISCOVERY.  123,^^^ 

which  to  base  a  valid  location  of  a  vein  or  lode  of  quartz,  or  other  '.  'v" 
rock  bearing  gold  or  silver  deposits,  has  often  been  before  the  courts,  T^-~j  \ 
and  a  few  of  the  decisions  in  relation  thereto  will  be  referred  to,  as  »    / 


the  rule  which  they  declare  concerning  the  quantity  or  the  value 

of  the  precious  metals  necessary  to  be  found  in  the  vein  or  lode-—  c^ 

before  it  can  be  located  is  applicable  in  principle  in   determining 

whether  there  has  been  a  sufficient  discovery  of  mineral-bearing  earth 

to  authorize  the  location  of  a  placer  mining  claim.     In  Book  v. 

Justice  Min.  Co.  (C.  C.)  58  Fed.  106,  Judge  Hawley  said: 


"When  the  locator  finds  rock  in  place  containing  mineral,  he  has  made  a    aj^ 
discovery  within  the  meaning  of  the  statute,  whether  the  rock  or  earth  is  rich    /w-^^i 
or  poor,  whether  it  assays  high  or  low.     It  is  the  finding  of  the  mineral  in  the 
rock  in  place,  as  distinguished  from  float  rock,  that  constitutes  the  discovery,     UHlJ^ 
and  warrants  the  prospector  in  making  a  location  of  a  mining  claim."    *    *    * 


*       *       * 

In  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  673, 
the  court,  after  citing  with  approval  the  rule  above  quoted  from  the 
opinion  in  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106,  as  to  what     i-^-"'* 
is  a  sufficient  discovery  of  lode  or  vein  claims,  said :  u  ij^ 

"So,  in  respect  to  placer  claims,  if  a  competent  locator  actually  finds  upon*Tlv  C* 
unappropriated  public  land  petroleum  or  other  mineral  in  or  upon  the  ground,     ► 
and  so  situated  as  to  constitute  a  part  of  it,  it  is  a  suiBcient  discovery,  within     ^"^ 
the  meaning  of  the  statute,  to  justify  a  location  under  the  law,  without  wait-     ^j 
ing  to  ascertain  by  exploration  whether  the  ground  contains  the  mineral  in      r^M 
sufficient  quantities  to  pay."  i  i 

We  do  not  understand  that  any  different  rule  is  laid  down  in    -4»tA 
Chrisman  v.  Miller,   197  U.  S.  313,  25   Sup.  Ct.  468,  49  L.  Ed. 
770.    *    *    *  '■      «. 

The  question  of  discovery  is  in  every  case  one  of  fact  for  the  court    ►    ■  ;^ 
or  jury;    Iron  Silver  Co.  v.  Mike  &  Starr  Co.,  143  U.  S.  394,  12  Sup.    "'     * 
Ct.  543,  36  L.  Ed.  201.    There  must  be  some  gold  found  within  the  f?^'^^ 
limits  of  the  land  located  as  a  placer  gold  claim,  but  it  cannot  be  said  ("^^^ 
in  advance  as  a  matter  of  law  how  much  must  be  found  in  order  to  ^/>« 
warrant  the  court  or  jury  in  finding  that  there  was  in  fact  a  discovery d»<&  h 
such  as  the  law  requires.     The  question  must  be  decided,  not  only         _ 
\vith  ref^netice  to  the  gold  actuaTFy  "found  within  the  limits  of  the  ^*  >^' 
claim  located,  but  also  in  view  of  its  situation  with  reference  to  other   ^< 
lands  Ivnown  to  contain  valuable  deposits  of  placer  gold,  and  whether  t,o«4 
its  rock  and  soil  formation  are  such  as  is  usually  found  where  these  ^/*p< 
deposits  exist  in  paying  quantities ;  and,  further,  in  considering  the  .-fit 
evidence  bearing  upon  the  general  question,  it  must  not  be  forgotten  ''    j- 
that  the  object  of  the  law  in  requiring  the  discovery  to  precede  loca-^.^* 
tion  is  to  insure  good  faith  upon  the  part  of  the  mineral  locator, o/p< 
and  to  prevent  frauds  upon  the  government  by  persons,  "attempting  pyiK 
to  acquire  patents  to  land  not  mineral  in  its  character."     Shoshone  \^ 
Min.  Co.  V.  Rutter,  87  Fed.  801,  31  C.  C.  A.  223     And  where  the  ^^ 


LODE   AND    PLACER    CLAIMS. 

,^^  ■   controversy  is,  as  in  this  case,  between  persons  claiming  the  land  as 

",  ^.'r   mineral,  "the  rule  respecting  the  sufficiency  of  a  discovery  of  mineral 

is  more  liberal  than  when  it  is  between  a  mineral  claimant  and  one 

^    ^     seeking  to  make  an  agricultural  entry,  for  the  reason  that  where  land 

f^.^J^  sought  to  be  taken  out  of  the  category  of  agricultural  lands  the 

evidence  of  its  mineral  character  should  be  reasonably  clear,  while  in 

respect  to  mineral  lands,  in  a  controversy  between  claimants,  the 

^'        question  is  simply  which  is  entitled  to  priority."    Chrisman  v   Miller 

^       197  U.  S.  313-323-  25  Sup.  Ct.  468,  49  L.  Ed.  770. 

f^^  Our  conclusion  is  that,  under  the  rule  stated  in  the  cases  to  which 

<^^-^  we  have  referred,  the  plaintiff  and  his  grantors  made  a  sufficient  dis- 

^U^     covery  of  gold  upon  the  lands  in  controversy  to  entitle  them  to  make 

a  valid  location  of  the  same  as  placer  claims,  under  the  laws  of 

the  United  States.    There  was  an  actual  discovery  of  gold  upon  each 

^         of  the  claims  located.    They  are  situated  near  other  lands  presenting 

^^^^^  the  same  surface  indications,  which  at  the  date  of  the  location  of 

v^     these  claims  were  known  to  be  valuable  for  the  placer  gold  which 

^*^'   they  contained;  and  these  facts,  according  to  the  uncontradicted 

{/u^.-  testimony  of  the  plaintiff  and  that  of  the  witness  Field,  above  quoted, 

f  ^        were  sufficient  to  justify  the  expenditure  of  money  for  the  purpose  of 

CpO/  their  exploration,  with  the  reasonable  expectation  that,  when  de- 

jjl^^,  veloped,  they  would  be  found  valuable  as  placer  mining  claims. 

---^    This  was  in  our  opinion  all  that  was  necessary. 

"*'^  f'  2.  The  action  was  brought  under  section  475  of  the  act  of  June  6, 
<:.w«,  1900,  entitled,  "An  act  making  further  provision  for  a  civil  govern- 
^^  ment  for_  Alaska,  and  for  other  purposes."  Chapter  786,  31  Stat. 
J*..      321.    This  section  provides : 

.  y  "A"y  person  in  possession,  by  himself  or  his  tenant,  of  real  propert}^  may 

maintain  an  action  of  an  equitable  nature  against  another  who  claims  an 
estate  or  interest  therein  adverse  to  him  for  the  purpose  of  determining  such 
claim,  estate,  or  interest."     Chapter  786,  31  Stat.  410. 

,  ,  It  was  incumbent  upon  the  plaintiff,  in  order  to  maintain  the  ac- 

'  "^"^tion  under  this  statute,  to  show  an  actual  possession  of  the  land  in 
^  controversy,  or  some  part  thereof,  at  the  date  of  the  commencement 
w  of  the  action.  Sepulveda  v.  Sepulveda,  39  Cal.  13 ;  Durell  v.  Abbott 
->  et  al.  (Wyo.)  44  Pac.  647.  The  evidence  shows  that  plaintiff  was 
:f      living  upon  claim  No.  11,  in  a  tent,  at  the  time  the  action  was  com- 

menced,  and  had  also  begun  to  sink  a  shaft  thereon  as  a  preliminary 
/    step  in  prospecting  or  developing  the  same  as  a  mining  claim.     This 

constituted  a  sufficient  possession  of  that  particular  mining  claim 
f  under  the  statute ;  and  we  are  also  of  the  opinion  that  there  was  suffi- 
-.^ ,  cient  _  evidence  to  show  plaintiff's  possession   of  the  other  claims 

described  in  the  complaint.    These  claims,  as  we  hold,  were  properly 

located  as  mining  claims,  and  in  such  case  slight  acts  of  dominion 
IP^i,  will  constitute  a  sufficient  possession  to  enable  the  locator  to  main- 
Q       tain  an  action  under  the  section  above  quoted. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


/t'^SH^  K^^,*.*-^  (r-t    ^U^^^  jf>v^-an,  "K^-^^  tfV  0"«-v-^^  ^^^^J^  i>-^ 

RELATION.  r  125    1  i^v. 

VERONDA  &  RICOLETTO  v.  DOWDY.  O^IT^-fi 

1910.     Supreme  Court  of  Arizona.     13  Ariz.  265,  108  Pac.  482. "  '-f^^^ 

Action  by  J.  T.  Dowdy  against  Veronda  &  Ricoletto.    Judgment  ^ 

for  plaintiff,  and  defendants  appeal.    Affirmed.  v 

Campbell,  J.^° — i\ppellee   located  a  placer  mining  claim  upon  "^^ 
the  unoccupied  public  lands  of  the  United  States.    Thereafter  appel-  ttft>o 
lants  moved  into  and  occupied  some  buildings  situated  within  the    v^r 
limits  of  the  claim.    This  action  of  ejectment  was  brought  to  recover 
possession  of  the  premises  and  for  rent.     *     *     *  Lft-^ 

Error  is  assigned  that  the  trial  court  found  against  appellants'  con-  flfJ^C 
tention  that  the  ground  covered  by  the  claim  does  not  contain  val-  j^ 
uable  mineral  deposits,  and  counsel  cite  various  decisions  of  the  Land  T'''*-^ 
Department  and  of  the  courts  bearing  upon  the  rights  of  a  mineral  (.^j^ 
claimant  as  against  persons  claiming  the  land  for  other  purposes.     .    * 
The  authorities  cited  have  no  application  to  the  facts  of  this  case,  ^  (^> 
but  are  confined  to  the  rights  of  claimants  of  different  classes  claim-  P      . 
ing  under  the  public  land  laws.     Appellee  made  a  valid  location,  """^  ,\ 
after  a  discovery  of  mineral.    The  appellants,  being  mere  trespassers, 
making  no  claim  to  the  ground  under  the  public  land  laws,  cannot, 
by  showing  that  the  land  is  more  valuable  for  some  purpose  other  ) 

than  mining,  oust  him  from  possession.  ,     .  ,  j  '^ 

The  judgment  of  the  district  court  is  affirmed.         /K^'^'vAvy^  ^x^o^.^ 


Section  3. — The  Relation  Between  Discovery  and  Location.  ^    1^..^  ifM>^i 

CREEDE  &  CRIPPLE  CREEK  MINING  &  MILLING  COM<^/  tl 
PANY,  Petitioner,  v.  UINTA  TUNNEL  MINING  &  TRANS-^     ; 
PORTATION  CO.     <) 
«r<W^  T/3«>-^'  tt^»^^ 


PORTATION  CO. '   U  t^  ^Cs^jK<k^  ,  '^  Z^ff/^  ^'.  ^  ^ 


V^okX'^  rfs*-^ t;»^'HTSee  post,  p.  295  for  a  report  of  the  cas^.)  c*.^^ 

-h.-vvJvi<  iAKJ.^}  /      BEALS  v.  CONE  et  al.  --^^^-^""[^^         ^'^^ 
|^w>^^  U-e^  (Sg'e  pQst^  p_  142  for  a  report  of  the  case.)  '^V^/r        -fi-*-*-^ 

r^^^^^^j*,^  HPELICAN  &  DIVES  MIN.  CO.  v.  SNODGRASS.  ^  ^    > 

J^IXi      1886.     Supreme  Court  of  Colorado.     9  Colo.  339,  12  Pac.  206.  (^)  f) 

'  tSt  '    During  the  years  1875-76,  w^hat  is  known  in  the  record  as  the    '^■' 

i  iS/  "Ontario  Tunnel"  was  run  by  one  Lewis.    The  tunnel  was  about  100  '^■'  -  \ 

^  feet  in  length,  and  disclosed  a  vein  of  mineral  at  its  breast.    The  last'-  -- U 

J^-  50  feet,  and  the  vein  found,  were  in  territory  which  at  the  time  was  c^k*^. 

?**^*^"  Part  of  the  opinion  is  omitted.  cvw^  "^  Ja^Uvv<)  V   Sr^-*cAO  f^-. 


120  THE   DISCOVERY   OF   LODE    AND    PLACER    CLAIMS/^       ^^^   V 

unappropriated.    About  loo  feet  of  drifting  was  also  done  by  Lewis 
at  or  near  the  inner  end  of  the  tunnel.    He  then  took  no  further  steps 
towards  perfecting  a  mining  location.    Appellee,  Snodgrass,  located 
a  claim  near  the  Ontario  tunnel,  called  the  "Nadenbusch,"  and  it  ap- 
pears that  both  Snodgrass  and  Lewis  were  under  the  impression  that 
the  Nadenbusch  claim  covered  the  apex  of  the  lode  disclosed  in  the 
tunnel.     Snodgrass  made  his  application,  and  secured  a  patent  for 
,      the  Nadenbusch  claim;  Lewis  failing  to  oppose  the  proceeding  by 
t^.    adverse  possession  or  protest.     In  February,  1881,  Snodgrass  went 
into  the  drift  leading  from  the  Ontario  tunnel,  and  did  a  little  work. 
He  also  leased  the  vein  existing  therein  to  other  parties,  but  the 
lease  was  soon  after  thrown  up.     At  this  time  he  still  believed  the 
^^^,    ^pex  of  the  vein  to  be  covered  by  the  Nadenbusch  patent ;  but,  upon 
£■    making  surveys  with  a  view  to  sinking  a  shaft  from  the  surface 
^     down  to  the  drift,  he  discovered  that  the  apex  was  outside  the 
•       Nadenbusch  side  line,  and  upon  vacant  ground.    In  March  following 
he  ran  an  open  cut  from  the  surface,  and  on  the  24th,  at  the  breast 
p      thereof,  intersected  the  vein  which  was  shown  in  the  Ontario  tunnel. 
;i      Qn  the  same  day  he  posted  his  discovery  notice,  and  staked  a  claim 
c-»  ;'at  the  Cross  lode.     He  then  sunk  a  discovery  shaft,  and  June  3d 
filed  his  location  certificate.    He  also  took  peaceable  possession  of  the 
tunnel,   and  thereafter  placed  a  door  across  the  same  where  the 
vacant  territory  began,  and  50  feet  from  the  entrance.    Several  days 
after  Snodgrass  commenced  his  open  cut,  Lewis  began  sinking  a 
shaft  from  the  surface,  and  on  the  day  succeeding  Snodgrass'  dis- 
covery of  mineral  he  also  reached  the  vein.     He  then  posted  a  dis- 
covery notice  and  proceeded  to  complete  his  location  of  the  Conten- 
tion lode.  His  location  certificate  was  filed  prior  to  that  of  Snodgrass, 
but  it  was  dated  March  25th,  and  fixed  the  date  of  discovery  as 
December  14,  1876,  when  he  disclosed  mineral  in  the  Ontario  tunnel, 

*  instead  of  March  25th,  1881,  when  he  reached  the  vein  in  his  shaft. 
unf""  The  next  day,  March  26th,  Lewis  conveyed  by  deed  to  the  appellant 
,,^  company.  Thereafter  the  company  applied  for  a  patent  to  the  Con- 
^  tention  lode.  Snodgrass  filed  an  adverse  claim,  and  brought  this 
•f^^v  suit  in  pursuance  thereof.     Upon  trial,  verdict  and  judgment  were 

given  for  Snodgrass,  and  the  company  prosecuted  this  appeal.    The 
remaining  essential  facts  are  sufficiently  stated  in  the  opinion. 
•^         Helm,  J.     The  Ontario  tunnel  was  not  located  in  pursuance  of  the 

•  "      law  relating  to  tunnel-sites.    Lewis  failed  to  follow  up  his  discovery 

of  mineral  therein  with  any  effort  whatever  towards  completing  the 

statutory  location  of  a  mining  claim.     With  the  possible  exception 

of  one  day's  work,  he  performed  no  labor  in  the  tunnel  for  a  period 

^j^  of  nearly  four  years,  although  he  sometimes  used  it  as  a  store-house 

-^      for  mining  tools.     Under  these   facts  we  are  of- opinion  that,  as 

•^     against  intervening  rights,  he  acquired  no  interest  whatever  in  the 

\^^  disputed  ground  by  virtue  of  the  tunnel  in  question    He  could  not, 

"'*|^four  years  after  discovering  the  vein  in  this  tunnel,  post  his  dis- 


t 


^  (    /Vi^/^'>'      ''i{iA?iol?7W-.  <?-/^.  127  Jr^f 

covery  notice,  erect  boundary  stakes,  file  his  location  certificate,  and^,^^  K 
have  the  inception  of  his  claim,  there  being  intervening  rights,  relate  » 

back  to  December  14,  1876,  the  date  of  such  discovery.  _^5^£r*'^ 

The  negotiations  of  Snodgrass  with  either  Lewis  or  Seddon  forlrvO>\ 
the  privilege  of  using  the  Ontario  tunnel  in  working  the  Nadenbusch,^^_^e:. 
a  patented    mine  belonging  to  Snodgrass,  are  matters  of  no  conse-       K) 
quence  in  this  litigation.  tf-^-^A-o 

Neither  does  the  mistake,  which  seems  to  have  been  mutual  on  the  ( i-Sljeh 

,^       part  of  Snodgrass  and  Lewis,  in  supposing  that  the  apex  of  the  vein  yi»^x>^ 
>•      disclosed  in  the  Ontario  tunnel  was  covered  by  the  Nadenbusch  pat- .     j.     . 

^"^       ent,  affect  the  case.  W-**^ 

^#-^,«*--We  do  not  agree  with  counsel  for  appellant  in  their  position  that^^l/l^O 
it  was  the  duty  of   Snodgrass,  upon  discovering  this  mistake,  to      -  yu^ 
inform  Lewis,  and  give  him  an  opportunity  to  first  locate  the  ground'  ^^   , 
i_ ,  in  controversy.     As  suggested  by  counsel  for  appellee,  under  the  *.  c„w»  «- 

<4^         evidence,  there  is  no  more  reason  for  holding  that  Snodgrass  was  j     ^ 

l^yvN     estopped   from   locating  the  Cross   lode  without  notice  to  Lewis,  ^^^^ 
than  there  would  be  for  saying  that,  had  Lewis  first  ascertained  the  /i-it^  i- 

pWV*"^  mutual  mistake,  it  would  have  been  his  duty  to  inform  Snodgrass,  ^.>^r 
and  give  the  latter  precedence  in  securing  the  coveted  vein.     We 
therefore  discard  the  Ontario  tunnel,  and  the  other  matters  connected^^*-^"^'^ 
therewith,  above  mentioned,  from  further  consideration  in  the  case^ ,..„*t:: 

Snodgrass  first  disclosed  a  vein  of  mineral  upon  the  ground  in « 
controversy  by  excavating  from  the  surface.    He  immediately  posted'-^i"^^ 
his  discovery  notice,  marked  the  boundaries,  and,  in  the  course  of  /  * 
seven  or  eight  days,  completed  his  discovery  shaft.     Within  threei 
months  from  the  date  of  discovery  he  filed  his  location  certificate /►(.-V..^: 
for  record  in  the  proper  office.     It  is  true  that  Lewis  completed  his . 
discovery  shaft,  and  recorded  his  location  certificate,  at  earlier  dates 
than  did'  Snodgrass.    But  these  acts  did  not  overcome  the  advantage,  ^  ^  \^ 
obtained  by  Snodgrass  through  his  prior  discovery.  _  /  /.' 

It  is   earnestly  argued   by  counsel   for  appellant  that  the   claim;  ;  7.' 
of  Snodgrass  was  a  relocation,  and  that  the  statute  fixing  60  days 
and   three  months   for   sinking  the  discovery   shaft  and   filing  the*-  ". 
location  certificate,  respectively,  did  not  apply  to  the   same.     The,.'.  , 
learned  counsel  insist  that  these  acts,  in  connection  with  relocation,         "^ 
must  be  performed  within  a  reasonable  time;  and  that,  under  the  •^-■^^ 
circumstances  disclosed  in  this  case,  70  days,  the  period  existing  be-|»n>Jk. 
tween  Snodgrass'  discovery  and  the  filing  of  his  certificate  for  record,^  f 
was  not  a  reasonable  time.    In  response  to  the  foregoing  argument,  i  i  C-^ 
we  have  this  to  say :  that,  in  the  first  place,  there  never  having  been.  /J, 
a  location  of  the  ground  in  controversy,  it  cannot  be  treated  as  anfv***''^*^ 
abandoned   claim;  hence  the  location  of   Snodgrass   should  be  re-), 
garded  as  original  and  not  a  relocation.     But,  secondly,  counsel  are  ^ 
mistaken  in  their  view  of  the  law  regarding  relocations.    Construing  j.\^  ;^ 
the  relocation  provision  in  connection  with  the  other  location  statutes,  ;. 
we  are  satisfied  that  the  legislature  intended  to  place  the  original^. -j/xT 

^fu_>-pu»s^'^^jjL  vCm  c^m>-*^  (^J^iu^  fCN^-iW^  jsH^x 


128  THE   DISCOVERY   OF   LODE    AND    PLACER    CLAIMS. 

discoverer  and  the  relocator,  so  far  as  possible,  upon  precisely  the 
>  ,  same  footing-.  That  body  doubtless  desired  to  give  the  latter  60 
^  ^^'Z  days,  after  finding  the  vein  (technically,  perhaps,  there  could  not  be 
a  second  discovery  thereof)  and  erecting  his  "new  location  stake,"  to 
sink  a  discovery  shaft,  and  three  months  within  which  to  record  his 
certificate.  Such  is  the  construction  of  the  law  already  announced 
by  this  court.    Armstrong  v.  Lozver,  6  Colo.  393. 

It  follows  from  the  foregoing  conclusions  concerning  the  facts  and 
the  law  that  the  rights  of  Snodgrass,  by  virtue  of  his  location  of  the 
ground  in  controversy,  must  be  held  superior  to  those  'of  appellant 
acquired  through  the  attempted  location  of  Lewis.  It  is  not  necessary 
for  us  to  separately  discuss  the  specific  assignments  of  error,  as  the 
,  questions  presented  thereon  by  appellant  have  been  fully  answered. 
The  judgment  will  be  affirmed.^ ^ 


VAN  ZANDT,  trustee,  v.  THE  ARGENTINE  MINING  CO. 
1881.     Circuit  Court,  D.  Colorado.     8  Fed.  725. 

Bi^  Ut^u  Action  to  recover  possession  of  the  Adelaide  mining  claim,  in 

California  district.  Lake  county,  Colorado. 

Plaintiff  offered  evidence  to  prove  that  the  claim  was  located  by 
■  \  Walls  and  Powell  in  the  year  1875.  As  to  marking  the  boundaries 
-'  ■••'     of  the  claim  on  the  surface  of  the  ground,  and  the  finding  of  valuable 

ore  in  the  discovery  shaft,  the  evidence  was  slight;  and  defendant 

^r      objected  to  plaintiff's  record  title  on  the  ground  that  these  facts 

^      were  not  shown.     As  there  was  some  evidence  on  both  points,  the 

court  held  that  the  paper  title  should  be  received.    *    *    * 

In  the  further  trial  of  the  cause  it  appeared  that  the  defendant 

claimed  under  two  locations,  called  the  Camp  Bird  and  Pine,  which 

,^  •.       it  held  by  patent  from  the  government.     Plaintiff's  claim  is  in  the 

I  general  course  north  and  south,  or,  to  be  exact,  north  t^t,  deg.  10  min, 

j^       east.    Defendant's  two  claims,  overlapping  the  other  somewhat  trans- 

V      versely,  are  in  the  general  course  east  and  west.     The  contesting 

claims  have  the  relation  of  the  jaws  of  shears,  and  the  ground  in 

controversy  is  that  included  in  the  space  of  intersection  and  a  small 

part  of  the  Adelaide  claim  immediately  north  of  the  intersection. 
^       The  discovery  shaft  of  the  Adelaide  claim  is  or  was  at  the  -north  end 

of  the  claim,  and  some  300  or  400  feet  from  the  ground  in  contro- 
*^  •   yersy.     By  later  operations,  and  the  erection  of  a  mill  and  ore-house        / 
vv^t   .in  the  vicinity,  it  had  been  filled,  and  the  position  of  it  in  the  claim       / 

py  ^  So  where   several   competing  locators   are   in   possession   of   prospecting       i 

-4  ground  by  common  consent,  the  first  one  to  make  a  discovery  and  to  follow       / 

it  up  in  due  time  with  the  acts  of  location  has  the  superior  right  to  the  ground  / 
located.  Grossman  v.  Pendery,  8  Fed.  693 ;  Johanson  v.  White,  88  C.  C.  A.  83.  / 
160  Fed.  901.  ' 


f^' 


*  RELATION.  I2Q  ®*«>v> 

was  not  7'ery  well  shown.    Between  this  shaft  and  the  ground  in  con-    ■ 
troversy  there  were  no  openings  to  prove  that  the  lode  extended  in 
that  direction,  and  whether  it  did  so  extend  was  strongly  contro- 
verted.    Defendant  gave  evidence  to  prove  that  no  mineral  was  ,\ 
[^  ^     found  in  the  discovery  shafts  and  that  the  condition  of  the  ground  '  '' 
^  C      was  such  that,  if  any  was   found  there,  it  was  broken  and  frag-  '/  ^:^'» 
.^     ,  mentary,  or,  in  other  words,  of  the  character  of  float  mixed  with  the  *^ 
g^i^*-y^lide  on  the  surface  of  the  mountain.     It  appeared,  however,  that  "■""'^>" 
p^^s.,*^  plaintiff  and  his  grantors  had  maintained  possession  of  the  premises  '''*^:t3r 

from  the  first,  had  made  valuable  improvements  on  the  claim,  and  ,_u 
'' ^       had  carried  on  extensive  mining  operations  at  and  near  the  ground  '     '^- ., 
(^       in  controversy.     The  Camp  Bird  and  Pine  discoveries  were  west'^^^-O^ 
'^      of  the  ground  in  controversy  200  or  300  feet,  and,  as  defendant  con-  (^  sJi 
^      tended,  on  the  top  and  apex  of  the  lode,  which  at  that  point  extended    i^^- 
^y^,^' almost  directly  across  those  locations.     The  defense,  by  answer,  to  C! 
^         the  support  of  which  many  witnesses  were  brought  into  court,  was-^^^^-'^^ 
that  the  ore  in  controversy  was  a  part  of  the  vein  which  defendant  Krf-O 
held  by  its  top  and  apex.    If  what  has  been  said  to  explain  the  posi-,!,*    ' 
,j^^  tion  of  the  claims  is  intelligible,  it  will  be  apparent  that  in  this  view^"*^"*^ 
#*     the  Adelaide  location  extended  across  the  vein  and  on  its  dip,  below  ^^-^-i^ 
■^      the  top  and  apex,  which  was  to  the  west  of  that  location.  And  as  the  U-ATt 
vJit    Adelaide  location  was  first  in  time,  it  became  a  question  whether  a   .      ^ 
^        location  so  made  and  otherwise  sufficient  would  be  valid  against  a  ^^'^^ 
junior  location  on  the  top  and  apex  of  the  vein.    This  having  been  ^y 
^'J'  ruled  as  expressed  in  the  charge  to  the  jury,  much  testimony  as  to  i«^kJi^ 
ixv^     the  top  and  apex  of  the  vein,  and  the  continuance  of  the  vein  to  the  ',^nv| 
■•«<     ground  in  controversy,  was  withheld,  and  the  case  stood  on  the  valid-  '  ^ 
"^<a.J  ity  of  plaintiff's  location,  whether  a  vein  in  place  was  found  in  the  'i^^^ 
^55^    discovery  shaft  of  that  location,  and  whether  the  vein,  if  found  there,  T^jj^ 
/-•    extended  to  the  ground  in  dispute.  ,  ^^ 

'  ^.  Hallett,  D.  J.,  (charging  jury.y-  The  questions  to  be  deter-  ^^^ 
^^  mined  on  the  evidence  relate  to  the  plaintiff's  location,  which  he  calls  5^^"*^ 
ma<<  the  Adelaide.  As  to  the  work  on  the  ground  necessary  to  a  valid  l^^  ^^ 
. .  |?|  location,  the  statute  of  the  state  provides,  among  other  ^things,  that  .  ^ 
^  5^.  a  discovery  shaft  shall  be  sunk  to  the  depth  of  at  least  10  feet,  or  "^  Mt»-4i 
'^;^  deeper,  if  necessary,  to  find  a  well-defined  crevice.  And  the  federal  ;,(^  p 
'*  .  'statute  declares  that  no  location  of  a  mining  claim  shall  be  made  until  '  if 
•^^<^^ , the  discovery  of  the  vein  or  lode  within  the  limits  of  the  claim  * *^*' 
U^.  located.  The  position  of  the  plaintiff  is  that  Walls  and  Powell,  the  yi^or\\ 
y  ^  locators  of  the  Adelaide  claim,  found  a  lode  or  vein  in  the  discovery  v, .» 
>  f^  shaft  sunk  by  them,  and  that  position  is  controverted  by  defendant.  '^*^^ 
j^  %'  I  do  not  recall  anything  said  by  witnesses  as  to  a  crevice  in  that  ^'v'"*^ 
,VJ  shaft ;  but  there  is  some  testimony  to  the  effect  that  ore  bearing  silver  'i'^x-^^ 
'*^»was  found  there.  If  you  find  from  the  evidence  that  such  ore  was  /-UL-jfTl 
"C  I  taken  from  the  Adelaide  discovery  shaft,  it  is  important  to  consider  #r^,»,»~>vv 
--        whether  it  existed  in  mass  and  position ;  or,  in  other  words,  in  the^f>»     . 

*■  Part  of  the  statement  of  facts  and  parts  of  the  charge  are  omitted.         ^MWi-lf^'- 


■■':    ■.--.,,  i..^   .^   -V  /<*v-,'^.— .      ..    .^t  :.^   C"  I 

.,  130  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIAIS  '  '  ' 

form  of  a  vein  or  lode;  or,  on  the  other  hand,"  in  a  broken  '^^^ 
^^  and  fragmentary  condition,  intermingled  with  the  slide  and  debris  f^A 
''  on  the  surface  of  the  mountain.     For  it  rests  with  the  plaintiff  to/      * 

^*T       show  that  ore  was  found  in  the  discovery  shaft,  and  also  that  the}  T 
-i*^      same  body,  vein,  or  lode  extends  to  the  ground  in  controversy,     oj 
jt ,     course,  if  ore  was  found  in  the  discovery  shaft,  and  the  ore  so^ found 
'.    was  broken  and  fragmentary,  it  cannot  be  said  that  a  body  of  ore 
— a  vein  or  lode— was  found  in  that  shaft  which  extends  to  the 
,     -,      ground  in  dispute.     So  that,  if  you  find  that  no  ore  was  discovered 
in  the  discovery  shaft  of  the  Adelaide  claim,  or  if  ore  was  found  in 
J"^    that  shaft  and  it  was  broken  and  fragmentary,  your  verdict  will  be 
lU'     for  the  defendant.     And  in  this  view— that  is,  assuming  the  facts 
'J^(^    to  be  as  stated — the  circumstance  that  plaintiff's  grantors  afterwards 
^  a;  ^  developed  the  body  of  ore  in  controversy  higher  up  the  mountain 
^         side,  will  not  affect  the  result.    For  a  location  rests  on  what  may  be 
M,^"    found  in  the  discovery  shaft;  and  if  nothing  is  found  there,  or  if 
.^     what  is  found  there  does  not  extend  beyond  the  limits  of  the'  shaft, 
the  discovery  of  a  body  of  ore  elsewhere  in  the  claim  will  not  avail. 
ter^^  But  if  a  vein  or  lode  was  found  in  the  discovery  shaft  of  the  Adelaide 
^^      claim,  and  it  extends  throughout  the  ground  in  controversv,  the 
4  k      plaintiff  may  prevail. 

IS*'   Something  has  been  said  as  to  whether  the  locators  complied  with 

.^x^-'the  other  provisions  of  the  statute  relating  to  posting  notice  of  the 

discovery  on  the  claim,  staking  the  boundaries,  all  of  which  must  be 

shpwn  in  evidence  to  constitute  a  valid  location.     If  you  find  these 

things  to  be  proved,  and  that  a  vein  or  lode  was  found  in  the  dis- 

j'        covery  shaft,  the  question  remains  whether  such  vein  or  lode  extends 

A^,-   to  the  ground  in  controversy.     Upon  the  evidence  here  it  may  come 

^     to  the  point  whether  the  lode  of  ore  found  in  the  several  shafts  on 

^^^  "  the  hill  was  also  found  in  the  discovery  shaft  of  the  Adelaide  claim. 

Nevertheless,  if  you  believe  from  the  evidence  that^avein  or  lode  was 

found  in  the  discovery  shaft,  and"  that  it  is  not  the  same  as  the^veiri 

or  veins  found  in  the  shafts  on  the  same  claim,  higher  upffis.^, 

but  that  it_  extends  throughout  the  claim,  the  plaintiff  may  prevail. 

This  being  shown,  although  defendant's  locations  may  appear  to  If 
you  to  be  along  the  line  of  the  top,  apex,  or  outcrop  of  the  vein,  it//  •^ 
cannot  prevail  against  a  senior  location  on  the  dip  of  the  lode.^^    *    *    =W/ 

^  "  But  in  Iron  Silver  Min.  Co.  v.  Murphy,  3  Fed.  368,  376,  Jud£?e  Hallett  had 
charged  that  "no  location  can  be  made  on  the  middle  part  of  a  lode,  or  other- 
vyise  than  at  the  top  and  apex,  which  will  enable  the  locator  to  go  beyond  his 
Ime  [in  extralateral  pursuit  of  the  lode]"  but  had  explained  to  counsel  "that 
It  has  always  been  a  question  in  my  mind  whether  a  location  made  on  the  dip 
of  a  vein  would  not  be  valid  as  against  one  of  later  date,  higher  up.  That  is 
to  say,  whether,  if  a  location  be  made  upon  the  dip  of  a  vein,  the  locator  may 
not  pursue  it  in  the  downward  course  although  he  mav  not  in  the  upward 
course,  and  may  not  hold  the  whole  which  lies  within  hi's  location  and  below 
It,  as  agamst  any  one  locating  subsequently  at  a  higher  point  on  the  same 
vcm    and  that  the  instruction  just  quoted  was  given  to  adhere  to  the  doctrine 


'•'"*"*H«^kJ7  relation,    ^''*->^     -^\     J^ilfc^W  .  ^  •— .- 

The  burden  is  on  the  plaintiff  to  establish  every  material  Uet;'^'^^^ 
hereinbefore  declared.  ^,^'^      I  .^       . 

The  jury  returned  a  verdict  for  the  plaintiff. i^^.X"""'^  1  '^*^""^*" 


GWILLIM  V.  DONNELLAN  a^d  another 


X 


1885.     Supreme  Court  of  the  United  States.        C^^*^<^-JL^'• 

115  U.  S.  45,  20  L.  Ed.  348,  5  Sup.  Ct.  mo.  ..  •  «Jt.      , 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  District     ,-  -,. 
of  Colorado.  ^ 

Waite,  C.  J.^^ — This  is  a  suit  begun  July  7,  1881,  under  section  '  " 
2326  of  the  Revised  Statutes,  to  determine  the  rights  of  adverse  'i  ^ 
claimants  to  certain  mining  locations.     Donnellan  and  Everett,  the  i»#v 
defendants  in  error  here,  and  also  the  defendants  below,  were  the 
owners  of  the  Mendota  claim  or  location,  and  Gwillim,  the  plaintiff  t*>-)i 
in  error  here,  and  the  plaintiff  below,  the  owner  of  the  Cambrian.  -2^  , 
The  two  claims  conflicted.     The  defendants  applied,  under  section   T**- 
2325,  Rev.  St.,  for  a  patent  of  the  land  covered  by  their  location,  \^^^J^ 
and  the  plaintiff"  filed  in  due  time  and  in  proper  form  his  adverse  » 
claim.     To  sustain  this  adverse  claim  the  present  suit  is  brought,  ^  ' 
which  is  in  form  an  action  to  establish  the  right  of  the  plaintiff  to  the  /  (, 
premises  in  dispute,  and  to  the  possession  thereof  as  against  the    j 
defendants,  on  account  of  a  "prior  location  thereof  as  a  mining  claim  -p-^Jt 
in  the  public  domain  of  the  United  States." 

The  question  in  the  case  arises  on  this  state  of  facts  :  CtA^ 

Upon  the  trial  the  plaintiff  gave  evidence  tending  to  show  that-*  ^U.- 
Isaac  Thomas,  on  the  sixteenth  of  May,  1878,  discovered  in  the  pub-  <1-ft^ 
lie   domain,   and   within  the   premises   described   in   the   complaint,    j 
a  vein  of  rock  in  place,  bearing  gold  and  silver,  and  sunk  a  shaft  to  ^^^f.' 
the  depth  of  10  feet  or  more,  to  a  well-defined  crevice,  and  located    1.*  » 
the  premises  under  the  name  of  the  "Cambrian  Lode,"  and  performed  ^^'^^'* 
all  the  acts  required  by  law  for  a  valid  location.    The  plaintiff  got  u    .'• 
his  title  from  Thomas.    In  the  answer  of  the  defendants  they  set  up*}\  ij 
title  under  the  Mendota  claim,  located,  as  they  allege,  November  19,    ^  '" 
1878.     The  plaintiff,  in  presenting  his  case  to  the  jury,  stated  in.'*.**  ""U, 
eft'ect  that,  after  the  location  of  the  claim  by  Thomas,  and  before  his  p, ^,_4« 
conveyance  to  the  plaintiff,   one   Fallon  instituted  proceedings  to  ' 

generally  accepted  in  the  state  and  to  "leave  the  consideration  of  the  question,;, 
to  the  Supreme  Court,  if  there  be  anything  in  it." 

"  With  Van  Zandt  v.  Argentine  Min.  Co.,  8  Fed.  725,  should  be  considered 
the  following  statement  in  Larkin  v.  Upton,  144  U.  S.  19,  21,  namely:     "It  is  ; 
unquestioned  law  that  the  top  or  apex  of  a  vein  must  be  within  the  boundaries 
of  the  claim  in  order  to  enable  the  locator  to  perfect  his  location  and  obtain  >^ 

*'^«  Part  of  the  opinion  is  omitted.      ^'V-'We   C&^>^^^^C^> 


«;<«"> 


^: 


132  TPIE   DISCOVERY   OF    LODE    AND   PLACER    CLAIMS 


%/^i 


obtain  a  patent  from  the  United  States  for  another  claim,  including 
that  part  of  Thomas'  claim  wherein  was  situated  the  discovery  shaft 
sunk  by  him ;  that  no  adverse  claim  was  interposed,  and  Fallon  ac- 
cordingly entered  his  claim  and  obtained  a  patent  therefor;  and, 
before  any  new  workings  or  developments  done  or  made  by  Thomas 
.         upon  any  part  of  his  claim  not  included  in  this  patent,  the  defendants 
^*^  f  entered  therein  and  located  the  same  as  a  mining  claim  in  the  public 
Ui^     domain.    Upon  this  statement  the  court  "ruled  that  inasmuch  as  that 
part  of  the  claim  of  said  Thomas,  wherein  was  situated  his  discovery 
^  "^     shaft,  had  been  patented  to  a  third  person,  the  plaintiff  was  not  en- 
Cy^-'  titled  to  recover  any  part  of  the  premises,  and  instructed  the  jury  to 
-™|Jo|ind  for  the  defendants."     This  instruction  is  assigned  for  error. 
J     t^    Thomas  made  his  location  as  the  discoverer  of  a  vein  or  lode 
LA^    within  the  lines  of  his  claim.    He  made  but  one  location,  and  that  for 
^JSt,  1,500  feet  in  length  along  the  discovered  vein.     All  his  labor  was 
done  at  the  discovery  shaft.     There  was  no  claim  of  a  second  dis- 
covery at  any  other  place  than  where  the  shaft  was  sunk. 

Section  2320  of  the  Revised  Statutes  provides  that  "a  mining  claim 
located  after  the  tenth  of  May,  1872,    *    *    *    shall  not  exceed  one 
thousand  five  hundred  feet  in  length  along  the  vein  or  lode ;  but  no 
location  of  a  mining  claim  shall  be  made  until  the  discovery  of  the 
vein  or  lode  within  the  limits  of  the  claim  located."     Section  2322 
gives  "the  locators  of  all  mining  locations,    *    *    *    so  long  as  they 
comply  with  the  laws  of  the  United  States,  and  with  the  state,  ter- 
ritorial, and  local  regulations  not  in  conflict  with  the  laws  of  the 
United    States    governing    their    possessory    title,    *    *    *    the    ex- 
JLj  .    elusive  right  of  possession  and  enjoyment  of  all  the  surface  included 
^  f      within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
*^    throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside  of 
^       such   surface   lines   extended   downward   vertically,  although   such 
veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their 
course  downward  as  to  extend  outside  the  vertical  side  lines  of  such 
surface  location."     The  location  is  made  on  the  surface,  and  the 
discovery  must  be  of  a  vein  or  lode,  the  top  or  apex  of  which  is 
within  the  limits  of  the  surface  lines  of  such  location.    A  patent  for 
the  land  located  conveys  the  legal  title  to  the  surface,  and  that  car- 
ries with  it  the  right  to  follow  a  discovered  vein,  the  apex  of  which 
is  within  the  limits  of  the  grant  downwards,  even  though  it  may  pass 
JL    outside  the  vertical  side  lines  of  the  location.    The  title  to  the  vein 
^     depends  on  the  right  to  the  occupancy  or  the  ownership  of  its  apex, 
within  the  limits  of  the  right  to  the  occupation  of  the  surface.    This 
right  may  be  acquired  by  a  valid  location  and  continued  mainte- 
nance of  a  mining  claim,  or  by  a  patent  from  the  United  States  for 
the  land. 

To  keep  up  and  maintain  a  valid  location  $100  worth  of  labor  must 

^^    be  done,  or  improvements  made,  during  each  year  until  a  patent  has 

been  issued  therefor.    Section  2324.    By  section  2325  it  is  provided 


,/> 


Wv..  at^l^  J^wv^  niLxt,^^     ^  ^''^      ":^ 

that  a  patent  may  be  obtained  for  land  located  or  claimed  for  val-      "* 
uable  deposits.     *     =;=     * 

A  valid  and  subsisting  location  of  mineral  lands,  made  and  kept  ^  • 
up  in  accordance  with  the  provisions  of  the  statutes  of  the  United  4^*-^ 
States,  has  the  effect  of  a  grant  by  the  United  States  of  the  right  of  v 
present  and  exclusive  possession  of  the  lands  located.  If,  when  one  ^^ 
enters  on  land  to  make  a  location,  there  is  another  location  in  full  ^*-«, 
force,  which  entitled  its  owner  to  the  exclusive  possession  of  the  land,  /v. 
the  first  location  operates  as  bar  to  the  second.  Belk  v.  Meagher,  ^^ 
104  U.  S.  284.  To  entitle  the  plaintiff  to  recover  in  this  suit,  there-  ^- 
fore,  it  was  incumbent  on  him  to  show  that  he  was  the  owner  of  a 

'"valTd  and  subsisting  location  of  the  lands  in  dispute,  superior  in  right     ' 

crfLsv    to  that  of  the  defendants.    His  location  must  be  one  which  entitles  -*f    , 
.^^jv'v^      him  to  possession  against  the  United  States,  as  well  as  against  an- 
'vi-.A^Jr  other  claimant.     If  it  is  not  valid  as  against  the  one,  it  is  not  as     ^^- 
f^c..,,^   against  the  other.    The  location  is  the  plaintiff's  title.     If  good,  he  ^'<^' 
\;^     can  recover ;  if  bad,  he  must  be  defeated.    A  location  on  account  of +UJ^ 
^^o"^     the  discovery  of  a  vein  or  lode  can  only  be  made  by  a  discoverer,  Yt>A 
^'"^'-^^^  ^  or  one  who  claims  under  him.    The  discoyered  lode  must  lie  within  X«^Jl 
*^     i>j  ^he  limits  of  the  location  which  is  made  by  reason  of  it.    If  the  title  y.7t; 
jj  -    ff   to  the  discovery  fails,  so  must  the  location  which  rests  upon  it.     If  |v\  ^ 
,yi^^    la  discoverer  has  himself  perfected  a  valid  location  on  account  of  _ 
^^^\<his  discovery,  no  one  else  can  have  the  benefit  of  his  discovery  for  "^^^ 

the  purposes  of  location  adverse  to  him,  except  as  a  relocator  after 
5*'~'^    he  has  lost  or  abandoned  his  prior  right.    Belk  v.  Meagher,  .?!//' rorfy-^ 
^  A  In  this  action  the  plaintiff  must  recover  on  the  strength  of  his  own*"'"  | 

Jijt^'  title,  not  on  the  weakness  of  that  of  his  adversary.  The  question  to  -S^ 
be  settled  by  judicial  determination,  so  far  as  he  is  concerned,  is  as  <c/ 
to  his  own  right  of  possession.  He  must  establish  a  possessory  title  ^^^^, 
in  himself,  good  as  against  everybody.  If  there  had  not  been  a  ,  *;  , 
patent  to  Fallon,  it  would  have  been  competent  for  the  defendants  -^  '' 
to  prove  on  the  trial  that  when  Thomas  entered,  Fallon  held  and  '  u 
owned  a  valid  and  subsisting  location  of  the  same  property,  and  was  ^-^ 
the  first  discoverer  of  the  lode,  the  apex  of  which  was  within  the  sur-  !3f ,  s 
face  lines  of  Thomas'  claim.  Had  this  been  done  the  location  of  CeJ^ 
Thomas  would  have  been  adjudged  invalid,  because  the  land  onQ^^^vJ 
which  his  alleged  discovery  was  made  was  not  open  to  exploration,  i;^ 
it  having  been  lawfully  located  and  claimed  by  Fallon.  The  admis-  ,  1 
sion  made  by  the  plaintiff  at  the  trial,  and  on  which  the  court  acted  l'^"'^ 
in  instructing  the  jury  to  find  for  the  defendants,  is  the  equivalent  of  ^^*-^"'*-* 
such  proof.  It  showed  that  after  May  16,  1878,  and  before  Novem-  VvCr* 
ber  19,  1878,  Fallon  had  applied  for  a  patent  of  the  land  on  which  ^^Jt_^ 
Thomas'  alleged  discovery  was  made,  and  where  he  had  sunk  his,»j^ 
discovery  shaft ;  that  Thomas  set  up  no  adverse  claim,  and  that  in  >  jf; 
due  time  Fallon  got  his  patent ;  and  this  because,  under  the  law,  the  ^^  ^^ 
United  States  had  the  right  to  assume  that  no  adverse  claim  existed.  \  ^ 
Having  failed  to  assert  his  claim  he  lost  his  title  as  against  the  ^^ 


^4W^ 


134  THE   DISCOVERY   OF    LODE    AND    PLACER    CLAIMS 


United  States,  the  common  source  of  title  to  all.  The  issue  of  the 
patent  to  Fallon  was  equivalent  to  a  determination  by  the  United 
States,  in  an  adversary  proceeding  to  which  Thomas  was  in  law  a 
party,  that  Fallon  had  title  to  the  discovery  superior  to  that  of 
Thomas,  and  that  consequently  Thomas'  location  was  invalid.  This 
barred  the  right  of  Thomas  to  apply  to  the  United  States  for  a 
patent,  and  of  course  defeated  his  location.  From  that  time  all 
lands  embraced  in  his  location  not  patented  to  Fallon  were  open  to 
Ai./-  exploration  and  subject  to  claim  for  new  discoveries.  The  loss  of 
,  fr>  (/  the  discovery  was  a  loss  of  the  location.  It  follows  that  the  court  did 
not  err  in  its  instructions  to  the  jury,  and  the  judgment  is  conse- 
quently affirmed. ^*^, 

.C    ,1    'I   f-^K.!    .  ^-v,  ,r    f«,  ..'    - 

,  Section  4. — Discovery  Within  an  Older  Existing  Location. 

^      (  /    f(     (..  M   /  UPTON  AND  OTHERS  V.  LARKIN  AND  OTHERS. 

*   'V     '  ',  1885.     SuPREis^E  Court  of  Montana.     5  Mont.  600,  6  Pac.  66. 

«Om'         Wade,  C.  J. — This  is  an  action  by  respondents  to  quiet  their  title 

.  to  a  certain  piece  or  parcel  of  land  known  as  the  "Camanche  Quartz 

» 7'^'  ^  'Mining  Claim,"  a  part  of  which  is  claimed  by  appellants  under  and 

^•"-^^  ,  by  virtue  of  their  location  of  the  Smelter  Mining  Claim.    The  facts, 

>     as  they  appear  by  the  special  findings  and  the  testimony,  are  in  sub- 

^ ,;    i    stance  as  follows:    The  Camanche  claim  was  located  January  19, 

>_^  )   }^79-    The  discovery  shaft  of  the  Camanche  was  within  the  limits  1 

^\    and  boundaries  of  the  Shannon  claim,  as  surveyed  and  patented  at 

^^      that  time.    At  the  time  of  the  location  of  the  Camanche  claim  there 

^-^*-'     ■  had  not  been  any  discovery  of  a  vein  or  lode  within  its  limits ;  but  in 

'Sytt'  ■     running  a  tunnel  on  the  claim,  between  the  months  of  December, 

f  ^G_-/^i88i,  and  the  last  of  February,  1882,  a  vein  or  lode  of  quartz  or  rock 

i-c,  ^^  place,  with  one  well-defined  wall  bearing  silver  or  other  precious 

J?^  metals,  was  discovered  within  the  boundaries  of  said  Camanche  claim 

o^-'^'^^r-r^  and  outside  the  boundaries  of  the  Shannon  claim.    The  location  of 

c»-a^-the  Smelter  claim,  which  covers  and  includes  a  portion  of  the  Ca- 

1  manche  claim, — the  ground  so  included  being  the  property  in  dispute 

^  ^^       in  this  action, — was,  subsequent  to  the  discovery  of  said  vein  or  lode, 

I         in  the  tunnel  of  the  Camanche  claim. 

"  But  see  the  earlier  case  of  Little   Pittsburgh  Consolidated   Min.   Co.  v. 
Amie  Min.  Co.,  17  Fed.  57,  which  held  that  a  locator  may  sell  the  ground  con- 
c-'*^k      taining  the  claim's  discovery  shaft  without  invalidating  the  rest  of  the  loca- 
'z.^\        tion.     Of  that  case   Messrs.  Morrison  &  De   Soto   say:    "A   distinction   can 
readily  be  drawn  between  this  and  the  Donnellan  case,  supra  fll5  U.  S.  45, 
29  L.  ed.  348,  15  Min.  Rep.  482]  ;  and  yet  they  are  so  close  that  it  may  be 
considered  dangerous  to  convey  that  portion  of  the  lode  containing  the  dis- 
covery without  proper  covenants  against  patenting  it  as  parcel  of  another 
.     ,.    claim."— Morrison's  Mining  Rights,  14  ed.,  49. -.     ^.^    1      ».  f^    <  .  l^ 

■  cJi)  f^  6^y:^-Y_^>  ^   6-auL>J  ^Kv  -tCmw-^'  ^  ^-i' 


OLDER   EXISTING   LOCATION.  '  135 


»*.>.>». 


Upon  this  state  of  facts  the  appellants  asked  the  court,  among  ^^ 
others,  to  give  the  following  instruction  to  the  jury,  viz.:  -i'^r 

"If  the  plaintiffs  did  not  discover,  at  the  time  they  made  their  location,  a  '"^^  "' 
mineral-bearing  vein  with  one  well-defined  wall,  upon  ground  subject  to  loca-  ^    ^  . 
tion,  you  should  find  for  defendants.     In  other  words,  if  the  plaintiffs  dis-  "^ \^ 
covered,  at  the  time  they  made  their  location,  their  vein  upon  land  belonging  t'^-»-'^ 
to  Charles  K.  Larrabie,  or  any  one  else,  then  the  jury,  if  they  so  find  from  cA  tA^ 
the  evidence,  should  find  for  the  defendants."  ^J| 

The  court  refused  to  give  the  instruction,  and  upon  this  refusal  is  r^"";* 
based  one  of  the  errors  complained  of.  ^  ^ 

The  Camanche  mining  claim  was  a  location  without  a  discovery,  '^-ux^ 
At  the  time  the  location  was  made  there  had  been  no  discovery  of  a  •'•  '■  ^ 
vein  or  lode  within  its  limits  or  elsewhere.     The  location  seems  tO'    's*--* 
have  been  made  by  virtue  of  a  shaft  sunk  within  the  boundaries  of«vvA.  tj 
the  Shannon,  which  was  a  patented  claim,  but  no  vein  or  lode  had*.^ 
been  discovered  in  the  shaft  at  the  time  of  the  location,  and  if  there !^^^j^ 
had  been,  it  would  have  been  a  discovery  upon  grounds  belonging  to 
other  persons,  and  therefore  could  not  have  authorized  a  location,  but 
about  two  years  subsequent  to  the  location,  and  before  the  location 
of  the  Smelter  claim,  a  discovery  was  made  in  a  tunnel  on  the  Ca-  ■ 
manche  claim,  and  outside  of  the  Shannon  boundaries,  which  dis-^-**^^ 
covery,  respondents  contend,  validates  the  Camanche  location.    This  l*SXAy 
theory  of  respondents  is  based  upon  an  instruction  given  to  the  jury(3;;^    j;j 
in  the  case  of  Jupiter  Min.  Co.  v.  Bodie  Consolidated  Min.  Co.,  by  ^ 
Judge  Sawyer,  in  the  circuit  court  of  the  United  States,  1 1  Fed.       ^ 
Rep.  676,  as  follows:  f   >^ 

Ax  4^ 

"I  instruct  you  further,  that  if  a  party  should  make  a  location  in  all  other'^'"^  J^ 

respects  regular,  and  in  accordance  with  the  laws,  and  the  rules,  regulations,4A_-Vt 
and  cifstoms  in  force  at  the  place  at  the  time,  upon  a  supposed  vein,  before  1  ».,< 
discovering  the  true  vein  or  lode,  and  should  do  sufficient  work  to  hold  the  y  [' 
claim,  and  after  such  location  should  discover  the  vein  or  lode  within  the  lim-\.A^  c^ 
its  of  the  claim  located,  before  any  other  party  had  acquired  any  rights  therein  l^^jg^ 
from  the  date  of  his  discovery,  his  claim  would  be  good  to  the  limits  of  his 
claim,  and  the  location  valid."  m\  .. 

This  instruction,  if  it  is  the  law,  would  be  applicable  to  a  case 
where  a  person  enters  upon  the  public  mineral  lands  and  discovers  .     ' 
what  he  supposes  to  be  a  vein  or  lode,  and  makes  a  location  by  virtue     » 
of  such  discovery  before  he  has  discovered  the  true  vein  or  lode,  and  ^-^  ' 
subsequently,  and  before  any  other  person  has  acquired  any  rights,  'v'^A--'^ 
makes  such  discovery.     Such  a  case  would  differ,  in  many  respects,  '^i»<N  f 
from  the  one  under  consideration.    In  this  case,  the  appellants,  with-  ^^  ^^^>, 
out  any  right  or  authority,  and  as  mere  trespassers,  entered  upon  the  ^,i^<^ 
Shannon    mining   claim,    which   had   been   patented   and   was   held  V 
and  owned  as  private  property,  in  which  the  government  had  no  in-  'V"^  ^ 
terest,  and  which  was  in  no  sense  public  land,  and  sunk  a  shaft  within  -'*  '^-'^  \ 


136  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS.  v-«^v.^. ii7Z»-^vV^ 

the  boundaries  of  such  claim;  and  without  any  pretense  of  having 
made  a  discovery  therein  upon  a  supposed  vein  or  lode,  and  simply 
by  virtue  of  a  hole  in  the  ground  upon  the  private  property  of  an- 
other, made  the  location  of  the  Camanche  claim.     The  question  is 
whether  such  a  location  becomes  valid  by  the  subsequent  discovery 
of  a  vein  or  lode  within  the  limits  of  the  claim  located  ?    A  discovery 
within  the  boundaries  of  the  Shannon  claim  would  not  authorize  or 
support  the  location  of  the  Camanche  claim  outside  of  such  bound- 
aries.   The  discovery  must  be  within  the  limits  of  the  claim  located, 
and  must  have  been  made  on  the  public  mineral  lands.     A  location 
'^,y     without  a  discovery  does  not  carry  with  it  a  grant  from  the  govern- 
^       ment  to  the  exclusive  possession  and  enjoyment  of  the  ground  lo- 
cated, nor  does  such  a  grant  attach  or  belong  to  a  discovery  alone. 
The  right  to  so  possess  portions  of  the  public  mineral  lands,  as  that 
the  right  to  purchase  attaches  thereto,  comes  alone  from  a  discovery 
.       and  location  in  pursuance  of  law.    If  a  discovery  is  made,  the  right 
t-J?  .     of  location  follows.  ./ 

fXv^       "A  location  is  not  made  by  taking  possession  alone,  but  by  working 
,/y     on  the  ground,  recording  and  doing  whatever  else  is  required  for  \ 
that  purpose  by  the  acts  of  congress,  and  the  local  laws  and  regula- 
tions."   Belk  V.  Meagher,  104  U.  S.  284. 
>^C-       If,  by  the  law,  something  remains  to  be  done  before  the  declaratory 
statement  or  notice  of  location  can  be  recorded,  then  there  is  no 
valid  location.    "A  location,  to  be  effectual,  must  be  good  at  the  time 
Cy       it  is  made."    Id.  285.    The  grant  of  the  government  does  not  attach 
.  ^.unless  the  location  has  been  made  in  pursuance  of  law. 
ff^         The  act  of  congress  authorizing  the  exploration  and  purchase  of 
'       '  the  public  mineral  lands  provides  (section  2320,  Rev.  St.)  that  no 
location  of  a  mining  claim  shall  be  made  until  the  discovery  of  the 
'^        vein  or  lode  within  the  limits  of  the  claim  located.     The  discovery 
^**^   thus  becomes  a  condition  precedent  to  the  location.     Recording  the 
notice  or  declaratory  statement  in  the  proper  county  is  one  of  the 
.acts  of  location,  but  the  statute  of  the  territory  provides  that  before 
,  ^iv  such  a  record  can  be  made  there  must  have  been  a  discovery  of  a 
y^_^  vein  or  lode  of  quartz  or  ore,  with  at  least  one  well-defined  wall. 
f^:^  Rev.  St.  p.  590,  §  874. 

In  the  case  of  Hanszvirth  v.  Butcher,  4  Mont.  307,  S.  C.  i  Pac. 
»^-'*'''^"*  Rep.  714,  we  held  that  before  there  can  be  a  valid  location  there  must 
*'**-*^  be  a  discovery. 

H{  Van  Zandt  v.  Argentine  Min.  Co.,  2  McCrary  159;  S.  C.  8  Fed. 

^te     Rep.  725.    If,  as  held  by  the  supreme  court  of  the  United  States  in    , 
_/'the  Belk  Case,  supra,  a  location,  to  be  effectual,  must  be  good  at  the   ■ 
i-*^ "■  time  it  is  made,  it  follows  that  a  location  void  at  the  time  it  is  made,,  ,  ^ 
A^    because  of  no  discovery,  or  because  the  discovery  was  made  on  a  i 
©^    claim  already  located  and  patented,  continues  and  remains  void,  and  | 
X  _  is  not  cured  or  made  effectual  by  a  subsequent  discovery  on  the  claimj  [ 
Jl     located.    The  statute  does  not  permit  a  location,  and  then  a  discov- 


;^^  ^'J«;t.  (J-»-«4^.  Kvi^A^^>^-  ^       'J^^  c.  ^^..^.tW, 

^,j^    tA>V    '^-w^-**-  OLDER   EXIST;frNG   LOCATION.  I37Uv^^v    ^• 


ery ;  but  in  all  cases  the  discovery  must  precede  the  location.    We  ^^.^  l^^ 
cannot  do  away  with  tlje'express  language  of  the  statute,  and  hold     ^^^^^,^^ 
that  there  may  be  a, valid  location  of  a  mining  claim  before  there  has  ^^  ^ 
been  a  discovery  on  the  claim  located.     And  especially  we  cannot*^ -^ 
maintain  a  location  made  by  virtue  of  a  shaft  sunk  on  the  patentedc*>— f-a 
claim  of  another  person.     If,  subsequent  to  the  location  of  the  Ca-  ^.j^^j-^ 

,imanche  claim,  a  discovery  was  made  thereon,  then  was  the  time  to  .  .    ^^ 
^  I  have  made  a  valid  location  of  the  claim.     It  is  immaterial  to  this  ;-'*^  ' 

^inquiry  whether  the  Smelter  location  was  valid  or  not.   This  is  an  »•<  « '    n 
action'  to  quiet  the  title  of  the  respondents,  and  they  must  show  a  «- 

good  title.    This  view  of  the  case  renders  it  unnecessary  to  discuss/^  v^^c.v 
the  other  questions  presented  in  appellant's  brief.  _     ^  ^  ,j.  ^^^ 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial.  7J\    * 

BREWSTER  v.  SHOEMAKER  et  al.   o,^  <>a^^  /iir'W 

1900.     Supreme  Court  of  Colorado.     28  Colo.  176,  63  Pac.  309.  |^^j^  (^ 

Action  by  Arthur  Brewster  against  George  W.  Shoemaker  and  b''^*^ 
another.    From  a  judgment  in  favor  of  defendants,  plaintiff  appeals.  *rvv  <A 

Affirmed.  Il^of- 

The  action  concerns  a  strip  of  ground  in  conflict  between  the  Boot-  V 
jack   and   Contention   lode-mining   claims,   situate   in   San   Miguel    '"" 
county.    The  Bootjack  is  the  earlier  location  in  point  of  time.    When 
its  owners  (defendants)  applied  in  the  land  office  for  a  patent,  plain-     ^  ^ 
tiff,  the  owner  of  the  Contention  lode,  filed  his  adverse  therein,  and 
brought  this  action  in  its  support.    The  facts  material  to  the  present 
controversy  may  thus  be  stated :  The  location  of  the  Contention  lode 
^  was  made  on  May  i,  1898.     No  question  is  raised  as  to  its  validity,   '"^j;^ 
Y^  provided  it  was  unappropriated  public  domain  at  the  time  of  plain- 
/"^  tiff's  entrv.    The  location  of  the  Bootjack  lode  is  claimed  as  of  the  W 
.  .^^  9th  day  of  November,  1897,  and  also  January  28,  1898.     The  first  V^^-, 
4^  discovery  of  mineral  was  upon  patented  ground,  and  not  within  the  \-~  ^^_ 
r     ^boundaries  of  the  Bootjack  claim,  as  staked.    It  was  therefore  void.    -' 
\r^On  the  28th  of  Januarv,  1898,  a  valid  discovery  of  mineral  was  made>^,<>&^i 
v*^     within  these  boundaries,  and  an  amended  location  certificate  filed.  • 
Both  these  discoveries  of  mineral  were  at  a  point  about  250  feet 
below  the  surface,  and  upon  the  same  vein,  and  were  made  in  drivmg         ^ 
a  tunnel ;  the  latter  discovery  being  at  a  point  on  the  vein  uncovered      ,;  •.  * 
bv  running  the  tunnel  further  into  the  mountain.    It  was  not  a  statu-^    ^^^  ^ 
tory  tunnel,— that  is,  not  located  under  the  tunnel  site  act  of  con- 'J 
gress,— but  was  driven  by  the  owners  of  the  Bootjack  lode  through  ^.►^■. 
patented  property,  not  belonging  to  defendants,  and  into  the  tern-  j£^< 
tory  in  dispute,  under  an  arrangement  made  between  the  patentee  ^      ..  ' 
and  the  tunnel  owners.    The  vein  in  the  tunnel  dipped  about  three 


138  THE   DISCOVERY    OF    LODE    AND    PLACER    CLAIMS. 

degrees  from  the  vertical.    A  calculation  was  made,  based  upon  the 
dip  of  the  vein  as  thus  disclosed,  and  at  a  point  on  the  surface  where, 
according  to  such  calculation,  the  vein  should  come  to  the  surface,  a 
discovery  notice  was  posted,  containing  the  statement  required  by 
statute,  and  also  a  recital  that  a  like  notice,  which  is  admitted,  was  at 
the  place  of  discovery   (describing  it),  and  information  was  given 
how  to  reach  it  through  the  tunnel.     Starting  with  this  discovery 
stake  on  the  surface  as  the  initial  point,  the  boundaries  of  the  claim 
were  designated,  and  the  stakes  set,  as  the  statute  prescribes.     No 
tracing  of  the  vein  upwards  was  done,  and  no  surface  work  per- 
formed, by  the  locators  of  the  Bootjack  claim.     The  vein  found  in 
,Wf*,.  the  tunnel  was  not  by  actual  exploitation  shown  to  apex  within  the 
limits  of  the  claim,  but  only  as  might  inferentially  appear  from  the 
'  calculation  to  which  reference  has  been  made.     When  the  plaintiff 
appeared  upon  the  ground  and  made  his  attempted  location  of  the 
Contention  lode,  the  posted  notice  and  boundary  stakes  of  the  Boot- 
jack were  in  place,  and  the  location  certificate  was  on  file.    Upon  this 
t  1  •       state  of  facts,  and  with  evidence  as  to  other  acts  necessary  to  consti- 
tute  a  valid  location  of  a  mining  claim,  the  case  was  submitted  to  the 
'^^  '      jury,  under  the  instructions  of  the  court,  and  a  verdict  returned  for 
•^  ^  ''       the  defendants,  upon  which  judgment  was  entered. 
i^'  Campbell,   C.   J.    (after   stating  the  facts). — Upon  this   appeal 

ft-«>»  •     two  questions  only  are  important,  and,  as  stated  by  appellant's  coun- 
try      sel,  they  are:  (i)  Can  a  location  admittedly  void,  because  of  an  ab- 
sence of  a  valid  discovery  of  mineral,  but  regular  in  all  other  re- 
spects, be  made  good  by  a  subsequent  valid  discovery  of  mineral 
-^         within  the  limits  of  the  location,  made  before  the  rights  of  third  par- 
w  .  ,   ;  ties  attach,  but  after  the  filing  of  the  location  certificate  and  all  acts 
of  location  have  been  performed?     (2)   May  a  location  of  a  valid 
^,    *    mining  claim  be  based  upon  an  underground  discovery  of  mineral 
\,    made  upon  the  dip  of  the  vein  at  a  distance  of  250  feet  below  the 
^^  J    surface,  or  any  other  distance,  through  a  tunnel  not  statutory, — that 
U.^.  V     is,  not  claimed  under  the  tunnel  site  act  of  congress, — where  the  vein 
t-4.       l^as  never  been  opened  upon  the  surface,  or  shown  by  actual  work- 
ing to  have  its  apex  within  the  limits  of  the  claim  as  staked  ? 
''•'■' '    > ,     I.    Plaintiffs  rely  upon  Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66; 
J  Id.,  7  Mont.  449,  17  Pac.  728, — which  was  afterwards  affirmed  in 
Larkin  v.  Upton,  144  U.  S.  19,  12  Sup.  Ct.  614,  36  L.  Ed.  330.    In 
the  opinion,  as  reported  in  5  Mont,  and  6  Pac,  supra,  it  was  said 
that  a  location  void  at  the  time  it  is  made,  because  of  no  discovery, 
^^wt-x*,.-  or  because  the  discovery  was  made  on  a  claim  already  located  and 
*TT^    patented,  continues  and  remains  void,  and  is  not  cured  or  made  ef- 
fectual by  a  subsequent  discovery  on  the  claim  located.    Upon  a 
■yHA^second  appeal  of  the  same  case,  reported  in  7  Mont,  and  17  Pac, 
f  uXl-    supra,  the  learned  court  seems  to  recognize  the  doctrine  laid  down 
by  Mr.  Justice  Sawyer  in  the  case  of  Jupiter  Min.  Co.  v.  Bodie  Con- 
solidated Min.  Co.  (C.  C.)  II  Fed.  666,  wherein  it  was  said  that  in 


OLDER   EXISTING   LOCATIOX.  139 '  I'    >    ~ 

^^--^    such  a  case  a  subsequent  valid  discovery,  made  before  any  other  per-  ^.^^  ^ 
;^        son  has  acquired  any  rights,  will  make  such  a  location  good.  But  the  ^./a^ 
U^      court  proceeds  at  the  second  hearing,  with  the  case  then  in  hand,  to     t^ ^ 
say  that  the  evidence  sought  to  be  introduced  at  the  trial  to  show    "       ^ 
a  subsequent  valid  discovery  was  properly  rejected  because  it  ap-  '     ■   ^ 
peared — or  at  least  it  w^as  not  clear  that  the  contrary  was  true — that  ; ''       . 
the  subsequent  discovery  to  which  the  evidence  was  directed  was     .         ' 
made  after  the  application  for  patent  was  filed.   And  the  court  held 
that  a  patent  ought  not  to  issue  upon  a  discovery  made  after  appli- 
cation.   It  also  declared  that  the  offer  of  evidence  was  not  made  in  >; 
good  faith,  but  to  enlist  the  sympathy  of  the  jury.    In  the  review  of  -' 
the  case  by  the  supreme  court  of  the  United  States  there  is  nothing  ,,  \    .. 
said  to  give  color  to  the  position  taken  here  by  appellant's  counsel..'     , 
Whether  the  owners  of  the  Bootjack  lode,  in  connection  with  the  sec-'-*  '   ^_|^  ^ 
ond  discovery  of  mineral, — the  one  within  its  exterior  boundaries, —  ^  ST^* 
in  January,  1898,  supposed  they  were  merely  amending  the  former  ^^&<«4 
attempted    location    by    correcting   the    description    and    filing    an  /*  ^  j«^ 
amended  location  certificate,  or  whether  they  intended  to  make,  and  *"'     • 
supposed  they  were  making,  a  relocation  of  an  abandoned  claim,  is  . 
immaterial;  for,  before  the  rights  of  third  persons,  including  the^ 
claimant,  attached,  it  is  admitted  that  they  had  taken  all  of  the  steps  _ 
which,  under  the  federal  and  state  statutes,  constitute  an  appropria-   ' 
tion  of  a  lode  mining  claim.  The  orderof  time  in  which  these  several  •  • 
/  acts  are  performed  is  not  of  the  essence  of  the  requirements,  and  it  ^'^  ^ 
'  is  immaterial  that  the  discovery  was  made  subsequent  to  the  comple-  »  s  Gf ' 
tion  of  the  acts  of  location,  provided  only  all  the  necessary  acts  are  t^jj-* 
done  before  intervening  rights   of  third  parties  accrue.    All  these    ^vv ^ 
other  steps  having  been  taken  before  a  valid  discovery,  and  a  valid *^*«^   ^ 
discovery  then  following,  it  would  be  a  useless  and  idle  ceremony,  F  ■  . 
which  the  law  does  not  require,  for  the  locators  again  to  locate  their .  ''..-)  ; 
claim,  and  refile  their  location  certificate,  or  file  a  new  one.    In  the 
case  of  Beals  v.  Cone,  62  Pac.  948,  we  have  ruled  against  appellant's .  , 
//  contention.  The  United  States  circuit  court  of  appeals  for  the  Eighth  ■ 
//  circ_uit^Jn_Envnv  V.  Perego,  35  C.  C.  A.  482,  93  Fed.  608,  in  a  case 
coming  up  from  Utah,  has  reached  the  same  conclusion.   We  know  . 
of  no  statutes  of  this  state  that  require  a  different  ruling.   Other  au- 
thorities sustaining  our  conclusion  are  Craig  v.  Thompson,  10  Colo.  .      ^ 
517,  16  Pac.  24;  North  Noonday  Min,  Co.  v.  Orient  Min.  Co.  (C.  ^  '    ^ 
C.)  9  Morr.  Min.  R.  529,  i  Fed.  522;  Strepey  v.  Stark,  7  Colo.  614,  €5v-v.w 
5  Pac.  in;  Mining  Co.  v.  Mahler,  4  Morr.  Min.  R.  390;  Jupiter  p  ^s 
Min.  Co.  V.  Bodie  Consol.  ?^Iin.  Co.  (C.  C.)  4  Morr.  Alin.  R.  411,  11  j  , 
Fed.  666;  i  Lindl.  Mines,  §  335  et  seq;  Morr.  Min.  R.  (9th  Ed.)  28,  .^ 
and  cases  cited.  "   '  " 

2.    In  EUet  V.  Campbell,  18  Colo.  510,  33  Pac.  521,  it  was  held  ^' *     ' 
that  w^hen  a  tunnel  claim  has  been  duly  located  under  the  provisions  *. 
of  the  acts  of  congress,  and  the  owner  thereafter  discovers  a  mineral    ' 
lode  therein,  h^  is  pot  bound  to  make  another  discovery  and  location 

1  Ky-*-^  ^ii^  <^-^ 


140  THE   DISCOVERY    OF    LODE   AND   PLACER    CLAIMS. 

t-Jw^v^^  of  the  lode  from  the  surface,  in  order  to  be  protected  against  a  sub- 
frtX/C  sequent  surface  location  of  the  same  lode.  This  case  was  affirmed  by 
^»j^ !'  the  supreme  court  of  the  United  States  in  Campbell  v.  Ellet,  167 
^^^^^^  U.  S.  116,  17  Sup.  Ct.  765,  42,  L.  Ed.  loi.  This,  however,  is  not 
A  controlling  of  the  proposition  now  under  consideration.  In  the  case 
'  at  bar  the  defendants  were  not  attempting  to  locate  a  tunnel  site 
under  the  acts  of  congress.  The  mouth  of  the  tunnel  was  not  upon 
•  ^V  the  Bootjack  claim,  and  the  entire  work  was  done  upon  patented 
^-J'^  land  by  the  plaintiffs  under  agreement  with  the  patentee.  The  point 
*^  tn  of  discovery  was  over  800  feet  from  the  mouth  of  the  tunnel.  As 
\^.^  well  said  by  Mr.  Morrison  in  his  work  on  Mining  Rights  (9th  Ed.) 
^(M  30  •  "The  fact  of  discovery  is  a  fact  of  itself,  to  be  totally  discon- 
►^  '*■  nected  from  the  idea  of  discovery  shaft.  The  discovery  shaft  is  a 
1vw-,*P  part  of  the  process  of  location,  subsequent  to  discovery."  Certainly 
ir^;,..^.   there  is  no  requirement  of  the  federal  statute  that  a  vein  shall  be  dis- 

S^  covered  from  the  surface.  The  only  requirement  in  that  respect  is 
that  the  place  of  discovery  shall  be  within  the  limits  of  the  claim. 
Under  our  statute  (Mills'  Ann.  St.  §  3154;  Gen.  St.  1883,  §  2403) 
where  a  lode  is  cut  at  a  depth  of  10  feet  below  the  surface  by  means 
'''^^ff  of  an  open  cut,  cross  cut,  or  tunnel,  it  is  the  same  as  if  a  discovery 
f»-wv^  shaft  were  sunk  on  the  vein  to  that  depth.  Gray  v.  Truby,  6  Colo, 
'aj.,  278;  Development  Co.  v.  Van  Auken,  9  Colo.  204,  11  Pac.  80.  The 
'^  '  question  here  is  not  whether  a  subsequent  discovery  on  the  apex  of 
the  lode  would  take  precedence  of  the  prior  discovery  on  the  dip, 


i^  ,,  for  there  is  no  claim  here  that  plaintiff's  subsequent  location  is  on 
^  .  the  apex  of  the  same  lode  on  whose  dip  defendants'  discovery  was 
^/y  theretofore  made.  But  the  question  is  whether  a  valid  location  can 
h/P  be  made  by  a  discovery  at  a  point  250  feet  beneath  the  surface,  when 
^  it  is  followed  up  by  a  marking  of  the  boundaries  on  the  surface  as 
j^  'though  the  discovery  had  been  made  from  the  surface,  and  by  the 
y*  doing  of  the  other  acts  which  the  statute  requires,  though  no  surface 

work  is  done,  and  no  actual  tracing  of  the  vein  to  the  surface  at- 
x*-^}-  tempted.  The  precise  question  has  not,  to  our  knowledge,  been  de- 
■^-1;  cided  by  a  court  of  last  resort,  but  we  do  not  see  why  a  location  such 
^^^—^  as  has  been  made  by  the  defendants  is  not  good.  It  has  been  held 
!>V        that  where  the  discovery  is  made  in  a  discovery  shaft  along  the 

course  of  a  vein,  and  the  surface  boundaries  marked  with  reference 

to  its  course  or  strike  as  disclosed  in  the  discovery  shaft,  the  pre- 
'^ '-  sumption  is  that  the  vein  continues  on  the  same  course  throughout 
*-*-^/  the  limits  of  the  claim.  When,  as  in  the  case  at  bar,  the  discovery  is 
pt^  made  underground  upon  the  dip  of  the  vein,  it  is  fair  to  assume,  in 
'^^^,.  the  absence  of  a  contrary  showing,  that  the  vein  extends  upward  at 
^^^  the  same  angle ;  and  a  marking  of  the  boundaries  by  making  the 
'^"',  place  at  which  the  vein,  if  continued  to  the  surface,  would  be  dis- 
^^'  closed,  the  initial  point,  is  a  sufficient  compliance  with  the  law.  That 
^'^     the  mouth  of  the  tunnel  was  not  upon  the  claim  we  do  not  consider 

important.    That  the  tunnel  was  driven  through  patented  property, 


^     ~K>C^  r«J^-v^  ixo-  >i  o.*^>-i.  ^^-oco  -KX^v  c-  •  -fu*k-i  1-^  i^  I 

tT^«  J::3T  ^^- =^  '^■cn'iPt^^-^^  ^i,r4 

'     '  ^  OLDER    EXISTING   LOCATION.  I41V    ^,    '     . 

not  belonging  to  the  owners  of  the  lode  discovered,  is  something  of  O-.**^"^ 
which  the  plaintiff  cannot  complain.  If  the  owners  of  the  land  j^<ys^^ .  ' 
through  which  the  tunnel  is  driven  give  their  consent  thereto,  a  third  »'  ^.^j 
person  may  not  object.  Sufficient  notice  was  conveyed  to  the  public^,  P 
of  this  location.  The  defendants  not  only  placed  in  the  tunnel,  at  the  ^  v^f* 
point  of  discovery,  a  discovery  stake  and  notice,  but  also  posted  the  K^a-.  ^. 
discovery  notice  on  the  surface,  containing  not  only  the  things  re-  iK^.^-is' 
quired  by  statute,  but  in  addition  informing  the  public  of  the  exact  j,_^  ^ 
spot  where  the  discovery  was  made,  and  furnishing  information  how^^^ 
to  reach  the  same  through  the  tunnel,  where  inspection  might  be  had.  '*^^<*-^ 
We  do  not  think  it  necessary,  in  a  discovery  which  is  made  under-  J^.'^'^-''^ 
neath  the  surface,  that  the  locator  shall,  at  the  risk  of  losing  his  jj  t..A»»-JC 
claim,  demonstrate  by  actual  working  that  the  top  or  apex  is  within  .-^_^  ^ 
the  limits  of  his  location.  In  the  absence  of  some  proof  to  the  con-^  ^ 
trary,  the  court  will  presume,  as  we  have  said  already,  that  the  vein  T**^^  ^ 
continues  in  its  upward  course  on  the  same  angle  to  the  surface ;  and  ^J*^" 
if  the  locator  selects  and  traces  his  boundaries  with  reference  to  this  (^^JlS^ 
place  on  the  surface,  so  as  to  include  it  within  the  limits  of  his  claim,  ^^^^^^ 
nothing  further  in  this  respect  is  required.  On  this  last  point  Arm-  ^  i  ' 
strong  V.  Lower,  6  Colo.  393,  and  Wakeman  v.  Norton,  24  Colo.  192,  5  »'*»-' 
49  Pac.  283,  though  not  deciding  the  precise  question,  are,  in  princi-  Vt*^ 
pie,  authority  for  the  holding  here.  The  judgment  of  the  court  be-  UhtI 
low  is  in  harmony  with  our  views,  anditis  affirmed.    ,    ^    /^  JhJ^  ^    ■ 

¥i^^^  f'^H-t  tv^>-#  ci   vv-r*-' 

SIERRA  BLAXCA  MINING  &  REDUCTION  CO.  y.  4^fe4««>i 

WINCHELL.  IjL^^sUsf  U^ 

1905.  ,  Supreme  Court  of  Color.\do.     35  Colo.  13,  83  Pac.  628.  ^^^  ^^^ 

Action  bv  the  Sierra  Blanca  Alining  &  Reduction  Company,  a  cor-  *^  ^ 
poration,  against  Howard  H.  Winchell,  in  support  of  an  adverse 
against  defendant's  application  for  a  patent  to  the  Cripple  Creek  lode    -  L  cr. 
mining  claim.     From  a  judgment  for  defendant,  plaintiff  appeals.  ;  ,jvv^ 

Reversed.  hS^i 

Gabbert,  C.  J.— During  the  progress  of  the  trial  the  parties  stipu-  ^^^ 
lated  that  the  conflict  between  the  Keystone  and  Cripple  Creek  lodes  »; 
should  follow  the  result  of  the  contention  between  the  Jessie  Mac  ^^  Lrv.  « 
and  the  Cripple  Creek,  and  that  no  testimony  need  be  given  as  to^^^^ 
the  Kevstone  conflict  with  the  Cripple  Creek  lode.  The  controversy  .  ^ 
is  thus'  narrowed  to  a  determination  of  the  rights  of  the  parties  in  ^ 
the  conflict  between  the  Jessie  Mac  and  Cripple  Creek.  The  judg-  *^  1 
ment  must  be  reversed,  because  of  the  refusal  to  give  an  instruction  ^jm..^,.^ 
requested  by  plaintiff.  This  instruction  was  to  the  effect  that  if  it  .|*t,vj«^4 
appeared  from  the  testimony  that  the  locators  of  the  Jessie  Mac  dis-  ^yj;*, 
covered  mineral  and  posted  notice  of  discovery,  and  that  the  loca- 


•mM^  +0.  «*i^c.  v^t  w--f  n-u.  IX-S^"..-*  t-V^  ,    . 


«wf"         142  THE   DISCOVERY   OF    LODE   AND    PLACER    CLAIMS. 

*^    *  r 

5»evv    tion  of  the  Cripple  Creek  was  based  upon  a  discovery  and  location 

j^^^^  0[  '  within  the  ground  claimed  by  the  Jessie  Mac  according  to  its  notice 
,j^        of  discovery,  made  within  60  days  from  the  date  such  notice  was 

I J         posted,  then  the  location  of  the  Cripple  Creek  lode  was  invalid. 

.•   ■  This  was   an  important  question,  and  no  instruction  was  given 

.    which  fully  and  clearly  called  the  attention  of  the  jury  to  this  point. 

There  was  testimony  on  the  part  of  the  plaintiff  (which  does  not 

appear  to  have  been  contradicted)  to  the  effect  that  the  discovery 

notice  of  the  Jessie  Mac  was  posted  on  the  30th  day  of  June,  1899. 

^n  '*'    The  testimony  on  behalf  of  the  defendant  was  to  the  effect  that  the 

>  ^  ■  discovery  notice  of  the  Cripple  Creek  was  posted  on  August  28th  fol- 
"  ^^  *■  lowing.  The  ground  claimed  by  the  latter  was  within  the  boundaries 
<"*^      '  of  the  Jessie  Mac,  as  indicated  by  the  notice  of  discovery  thereon. 

>  ft  •»"■  According  to  the  stipulation  of  the  parties,  mineral  in  place  was  dis- 
ji  -f;,     covered  in  what  was  claimed  to  be  the  respective  discovery  cuts  of 

'         ;  the  two  claims.  The  other  acts  necessary  to  perfect  a  mineral  location 

.    were  contested,  especially  the  sufficiency  of  the  discovery  work  on 

»v>-/^"r;^the  Jessie  Mac  lode.   Whether  or  not,  however,  this  work  was  per- 

f.  ,  /\     formed  was  not  controlling.    If  the  discovery  and  location  of  the 

Cripple  Creek  was  within  the  boundaries  of  the  Jessie  Mac,  as  evi- 

-  ..         denced  by  its  discovery  notice,  and  such  discovery  and  location  was 

a  ^       made  within  60  days  of  the  date  the  Jessie  Mac  notice  of  discovery 

fe*,»"^-N  was  posted,  then  the  Cripple  Creek  location  was  invalid,  and  Ihi's 

yjOi  1/  invalidity  would  not  be  cured  by  the  failure  of  the  claimant  of  the 

,^j^    ,    Jessie  Mac  to  perform  the  necessary  discovery  work. 

..     .         A  location  based  upon  a  discovery  within  the  limits  of  an  existing 

'  '  and  valid  location" is  void.    Sullivan  v.  Sharp  (Colo.  Sup.)  80  Pac. 

[>&•(,      1054.    A  location  notice  properly  made  and  posted  upon  a  valid  dis- 

U.*^C      covery  of  mineral  is  an  appropriation  of  the  territory  therein  speci- 

^  h4      fied  for  the  period  of  60  days.   During  this  period,  no  one  can  initiate 

A|s^».,,    title  thereto  which  would  be  rendered  valid  by  the  mere  failure  of 

J  y       the  first  appropriator  to  perform  the  necessary  discovery  work  with- 

i  J  .       in  the  time  prescribed  by  law.   Omar  v.  Soper,  11  Colo.  380,  18  Pac. 

■^  443,  7  Am.  St.  Rep.  246. 

.    Tudgment  reversed.  ..        t^   ^Jl  ^  ^,    ''       l>  fl   «   >C\ 


.•^  ^t^  tfJv^LwK^)  ^^a«,v.>«;i:^,  pju^jct^v^-v^  L^yKKit> 

^  CHAPTER  IV.    l^COO?    yvUrUo^^^n/^ 

THE   LOCATION    OF    LODE    AND   OF    PLACER    CLAIMS.    -H.-*iu,,i  <•  t>.  »<j, .  i"| 

'The  acts  of  location  normally  follow  discover}^  and  in  general  consist  of  i  m 

(1)  the  posting  of  a  discovery  notice;  (2)  the  sinking  of  a  discovery  shaft  or  t'*-^-^'^  ^-J 
its  equivalent;  (3)  the  marking  of  boundaries;  (4)  the  posting  of  a  location  ||fi«.ibl-)  h 
notice;  (5)  the  recording  of  the  proper  papers." — Costigan,  Mining  Law,  176.    *      * 

"The  acts  of   location   for  placers    *    *    *    are   in  the  main  the  same  as    ^  f*"^  ^ 
those  for  lodes,  though  only  a  few  states  require  discovery  work  on  placers."  CUui  ^^- 
Costigan,  Mining  Law,  247.  -■'  ^  ,  >:,  <»-Nf— j ,  (j-e.C£^^w»— v  sisL  K-ftM 

Section  1.— Discovery  Work.  Wi5^xa,4v^'  -^  «cO  9"<^^^^VeN^  ^- 

COLORADO  STATUTES.*    iAO*-»-f-«^   \_0-^Si-v^  UP" 


y^  v.v^VU^^   I'v^^  CV,^   e< 


Before  filing  such  location  certificate  the  discoverer  shall  locate  his  claim  by .      .- 
First — Sinking  a  discovery  shaft  vvpon  the  lode  to  the  depth  of  at  least  ten    ^MJ-^ii-^ 


ifeet-irfiiCLjhe  lowest _part  of  the  rim  of  such^haft  at  the  surface,  or  deeper,    {^^-y^r-^ 
The  discoverer  shall  have  sixty  days  from  the  time  of  uncovering  or  dis-  *^''  ^^ 


iff  .accessary  to  shQ.w__y,  3vell-defixied  crevice- — Rev.  St.  Colo.,  1908,  §  4197. 


closing  a  lode  to  sink  a  discovery  shaft  thereon — Rev.  St.  Colo.,  1908,  §  4199.  J  i 


ft  Any  open  cut,  cross  cut  or  tunnel  which  shall  cut  a  lode  at  the  depth  Jji-yj  i  ,j^^ 
-*~-  ten  feet  below  the  surface,  shall  hold  such  lode,  the  same  as  if  a  discovery  l-'-*^  v 
X^  shaft  were  sunk  thereon,  or  an  adit  of  at  least  ten  feet  in  along  the-l<5^de  f rom -^^••^;  y^^^ 
,  ^'  the  point  where  the  lode  may  be  in  any  manner  discovered,  shall  be  equivalent  +v/  ^Jbl-t 
)^    to  a  discovery  shaft.— Rev.  St.  Colo.,  1908,  §  4198.     ,.,'-'"' '.  .  w!X-f"7«^ 

^  The  relocation  of  abandoned  lode  claims  shall  b^' by  sinking  a  new  discov-   »''-<J^**- 

ery  shaft  and  fixing  new  boundaries  in  the  same-manner  as  if  it  were  the  loca-    t>»>'^  *-^' 
tion  of  a  new  claim;  or  the  relocator  may  si>jk  the  original  discovery  shaft  ten    L^(j^  I 
feet  deeper  than  it  was  at  the  time  of  abaj^^dbnment,  and  erect  new  or  adopt  the    I        ^, 
old  boundaries,  renewing  the  posts  i^-femoved  or  destroyed.     In  either  case    X.^<J 
\       a  new  location  stake  shall  be  ercctpd!     Rev.  St.  Colo.  1908  §  4211  as  amended  -.f^/^"- 
"^  -     Laws  Colo.  1911  p.  515i|j>f^  t.*.'T^4w>V.^MK.v^    ctx>  K^t^  tj«vo>.><^ 


?ess 


a^irj^ 


NORTHMORE  v.  SIMMONS 


[MONS  ET  At  'l>l^:j^:^i 


(See  post,  p.  305,  for  a  report  of  the  case.)  wOs^as-^ -^-t-st^  )*J^ 

.^■C-vv-^  e.>,fcfeii  T*jr*-o  Kxr  ^ 
BEALS  V.  CONE  et  al.       i^vt,aJ^.  <UiJ-A.»^  ^  «-*y 

r i90Q^_.SuPREME  Court  of  Colorado.     27  Colo.  473,  62  Pac.  948.^*-jr\^^ 

^y/^  Action  by  appellant,  as  plaintiff  in  the  court  below,  as  the  owner  c-V  •  c:Xf*\ 
..—-of  the  Tecumseh  lode,  in  support  of  his  adverse  against  the  applica-  fft^  i^j 

^For  tables  of  statutory  requirements  of  the  various  states,  see  the  Tast-acr.  "^.Jl^-    ' 

'^      cessible  edition  of  Morrison's  Mining  Rights.     In  the  14th  edition  the  tables   p-^'l\ 

appear  at  pp.  73,  253.  ^.  ^    ^t^.^^  U^Ut^^^     'u^OtCJl&J^ 


^_fv  144  r^CATijON   OF   LODE   AND   PLACER    rr,AIMS. 

fjZ,^J^  tion  of  appellees,  as  defendants,  for  patent  to  that  portion  of  theUXi> 
X^iA  Ophir  lode  in  conflict  with  the  Tecumseh.  From  a  judgment  in  favor 
T        ^  of  defendants,  plaintiff  appeals.  Affirmed. 

^>j>~.  Gabbert,    J.- — *     *     *     The    trial    court    excluded    appellant's 

^*^'"    original  certificate  of  location  on  the  Tecumseh,  which  bore  date  May 

v^iLj>|r     3^  1892,  was  recorded  May  6th  of  the  same  year,  and  claimed  a  dis- 

A-tK^       covery  on  April  i8th  preceding.    The  evidence  was  undisputed  that 

^  ^^,no  discovery  of  mineral  in  place,  such  as  the  law  contemplates,  was 

t'  made  upon  the  Tecumseh  until  April  20,  1894,  at  which  time  appel- 

^     lant  relocated  the  premises  and  filed  a  certificate  of  location.    His 

?  l^Xi  -  counsel  contend  that  the  original  location  certificate  should  have  been 

e  ^  u^^admitted,  because,  a  discovery  having  been  made  in  the  spring  of 

1)^   1894,  it  w^ould  relate  back  to  the  date  of  the  original  location.    The 

^  \T   validity  of  the  location  of  a  mining  claim  is  made  to  depend  primarily 

-^j  P^-  upon  the  discovery  of  a  vein  Or  lode  wuthin  its  limits.    Section  2320, 

i  j-t,-F     Rev.  St.  U.  S.    Until  such  discovery,  no  rights  are  acquired  by  loca- 

^1^-.        tion.   The  other  requisites  which  must  be  observed  in  order  to  per- 

/,      feet  and  keep  alive  a  valid  location  are  not  imperative,  except  as 

'^'  against  the  rights  of  third  persons.  If  the  necessary  steps  outside  of 

C*t»'l ■«■'>. discovery  are  not  taken  within  the  time  required  by  law,  but  are_ 

■  ii^ '      compHed  with  before  the  rights  of  third  parties  intervene,  they  relate' 

!  VKSi^  I,    Back  to  the  date  of  location.    But  not  so  with  discovery,  for  it  is 

,  l^  tfv    upon  that  act  that  the  very  life  of  a  mineral  location  depends ;  and 

tvt^v^lrCr- f rom  the  time  of  such  discovery  only  would  the  location  be  valid, 

tttXp^-  provided,  of  course,  that  others  had  not  previously  acquired  rights 

tj.^^,,         therein.     North  Noonday  Min.  Co.  v.  Orient  Min.  Co.   (C.  C.)  6 

^.K^t^^i^    Sawy.  299,  I  Fed.  522.    Under  this  rule  the  original  certificate  of 

A    *  the  Tecumseh  was  properly  excluded ;  for  the  rights  of  appellant  to 

vuin-foe^  ^^^  disputed  premises  only  dated  from  April  20,  1894.     *     *     * 

.  j»  6.*A     ,pj^^  judgment  of  the  district  court  is  affirmed.    Affirmed. 

-J  c^  LU^I  y^h-lA^  ,  On  Petition  for  Rehearing. 

^r^^^  Iki^       (November  19,  1900.) 

Per  Curlam.     *     *     *     For  a  better  understanding  of  the  rea- 

0  Uf<  sons  why  the  ruling  of  the  trial  court  in  excluding  appellant's  orig- 

'^^l        'inal  certificate  of  location  on  the  Tecumseh  w^as  correct,  the  follow- 

^!^'~*^   ing  facts  should  be  borne  in  mind:    The  location  of  the  Tecumseh 

-  J^^'^under  the  discovery  alleged  to  have  been  made  April  20,  1894,  was 

*'T*-H,    upon  a  discovery  at  an  entirely  different  point  from  the  discovery 

Cry^^    shaft  upon  which  the  original  location  was  based.    Under  the  new 

jy^     location  a  new  discovery  shaft  was  adopted.   It  became,  in  effect,  an 

f     ^     original  location.    The  statute  which  permits  amendatory  or  addi- 

>>  iMi^J^     '  Parts  of  the  opinions  are  omitted.     For  some  of  such  parts  see  post  pa^s 


DISCOVERY    WORK.  I45    "^y^  Ha 

tional  certificates  to  be  filed  provides  that  the  fihng  of  such  a  certifi-  -    Vj^^X 
cate  shall  not  preclude  the  claimant  under  it  from  proving  such  title  rljj*^"' 
as  he  may  have  held  under  the  original  location  certificate.    Section    J^^ 
3160,  j\Iills'  Ann.  St.    For  this  reason  the  original  certificate  may,  tT*-*-*-*"* 
under  certain  conditions,  be  admissible.    Such  conditions,  however,  f'*'"^-'^ 
do  not  exist  in  the  case  at  bar.   Prior  to  the  discovery  alleged  to  have*  ***'"  "^tT 
been  made  upon  which  the  second  location  is  based,  no  right  to  the  ^*'^*^  )' 
premises  "in"  "dispute  was  vested  in  appellant  which  entitled  him  to  AAV-Miy. 
hold  the  ground  as  against  third  parties,  because  no  discovery  oiXa^  \^^ 
mineral  had  been  made  before  that  time. '  A  location  without  a  dis-fiV''*-^ 
covery  carries  with  it  no  rights.  Upton  v.  Larkin  (Mont.)  6  Pac.  66.  ^  *tM< 
The  acts  to  establish  a  location  which  appellant  had  performed  prior  o*,;^^ 
to  the  discovery  in  April,  1894,  would  have  taken  effect,  in  so  far  ^W^^ 
as  they  could  have  been  utilized,  as  of  the  date  of  such  discovery.         «^j^ 
Erwin  v.  Perego,  35  C.  C.  A.  482,  93  Fed.  608.  Appellant,  however-,-4^«r^ 
did  not  rely  upon  any  of  these  acts,  but  filed  a  new  location  certifi-  w-i-*-v*|* 
cate,  including  ground  the. boundaries  of  which  were  different  from  ^^*^^ 
that_-described  in  the  original  certificate.    This  was  a  new  location  |rV"*-^ 
under  a  new  and  distinct  discovery,  and  the  act  of  filing  a  new  cer-  fcr>-*»-^> 
tificate  under  this  state  of  facts  was  a  complete  abandonment  of  all  "-^  \  it 
^    rights  which  might  have  attached  to  the  steps  taken  under  the  orig- 
C  .    inal  location.    The  appellees  at  all  times  relied  upon  a  discovery  ^*-''^-'*'"'*^ 
^>^  claimed  to  have  been  made  in  the  discovery  shaft  of  the  Ophir.  Even  L>-*-  ^^ 
^      if  there  was  no  mineral  disclosed  in  this  shaft  at  the  time  they  filed  ^  i4v«*' 
!>'- their  location  certificate,  the  subsequent  discovery  which  they  claimed 
».),    to  have  made  in  this  shaft  made  this  location  valid,  except  as  against  V 

intervening  rights,  from  that  date.  Erwin  v.  Perego,  supra.  Theyi-o-/ P^ 
never  filed  any  other  certificate,  and  the  original  certificate  of  the  U  ,y%j>^ 
Ophir  was  therefore  properly  admitted.     *     *     "■••  r  ^Lfc-u 

Counsel  for  appellant  contend  that,  under  instructions  given  a"^  rK^^..^ 
refused,  the  jury  was  precluded  from  considering  the  admitted  fact 
that  veins  were  exposed  in  two  different  shafts  upon  the  Tecumseh,  rH***^— ^ 
designated  2  and  3.  What  we  said  in  the  original,  main  opinion  on  ^^  iu,>'.S!»>'C 
this  subject  is  withdrawn.  In  considering  this  question,  these  facts  1  1  1^  ^^ 
must  be  borne  in  mind:  Whether  or  not  a  mineral-bearing  vein  waSi  .  , 

--^,,^disclosed  in  the  discovery  shaft  upon  which  the  present  location  of""-^   '^ 
•'*^^TlTF'~TeciJmseh  is  based  was  controverted.    No  location  was  made^,-*-/"  A 
J^  upon  either  of  the  discoveries  in  shafts  2  and  3.   The  proposition  of  w-j^/^  /■ 
s/~     counsel  for  appellant  is  that  if  a  well-defined  crevice,  although  not  sL^'Vv 
l^    bearing  mineral  in  appreciable  quantities,  is  exposed  in  the  discovery  ,£  ^,a^ 
^      shaft,  the  claimant  may  rely  upon  discoveries  in  other  shafts  within ''          "    ' 
a     the  boundaries  of  his  claim  which  disclose  the  mineral  necessary  toO*'*'^''*^ 
^^  constitute  technical  veins.     *     *     *     The  statute  of  this  state  which  iK^  i 
<Y     designates  what  shall  be  disclosed  in  the  discovery  shaft  provides  Va*-v^ 
rit^that  it  shall  disclose  a  well-defined  crevice  at  the  depth  of  at  least  {'^^.turi 
j<^vs4 10  feet  from  the  lowest  part  of  the  rim  of  such  shaft,  at  the  surface.  »_      ^ 
L-^Section  3152,  2  ^Mills'  Ann.  St.   It  being  conceded  that  the  laws  of  ^^  ' 

'^  ,  ^   10— Mining  Law    U'«>A;1o  *^  *^-                '  "^"^  "^  ^-^^"^  '                   ' 
'^I'^i.JX^  r    -^■:>^*  i^*<«f^- tA    C^.   .,..,.._aik*lfi>Lj6 -..-« -^ 


I46v  LOCATION    OF    LODE   AND   PLACER    CLAIMS. 

this  state  relative  to  the  requirements  of  a  discovery  shaft  are  valid, 
it  appears  to  us  that  the  proposition  upon  which  counsel  rely  is  not 
tenable.   If,  as  stated,  the  state  statute  is  legal,  it  necessarily  follows   .\ 
that  the  discovery  shaft  must  expose  the  vein  upon  which  the  location  T  » 
is  based,  or  at  least  disclose  one,  and  therefore  the  mere  discovery  .^j-/ 
of  some  other  vein  within  the  limits  of  the  claim  cannot  supply  the '    ^^ 
absence  of  the  one  required  to  be  exposed  in  the  discovery  shaft.^    ^,^ 
In  other  words,  the  proposition  of  counsel  for  appellant  cannot  be    ^^^ 
'  ,         upheld  unless  the  state  statute  is  declared  invalid,  and  the  admission  y^ 
-I        upon  their  part  that  it  is  not  relieves  us  from  the  necessity  of  deter-      ^ 
mining-  the  effect  of  discoveries  in  shafts  2  and  3  of  the  Tecumseh. 
"Crevice,"  as  employed  in  the  statute  relative  to  a  discovery  shaft,  |\K, 
clearly  means  a  mineral-bearing  vein.    It  was  so  held  by  this  courtj"^^ 
in  Bryan  v.  McCaig,  10  Colo.  309,  15  Pac.  413.  The  circuit  court  of 
the  United  States  for  the  district  of  Colorado  has  adopted  the  same  ^^ 
view.   Van  Zandt  v.  Mining  Co.  (C.  C.)  8  Fed.  725;  Terrible  Min. 
■I^C^WK^o.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583  ;  Cheesman  v.  Shreeve  ^j/\ 
^    j^    (C.  C.)  40  Fed.  787.    Under  these  decisions,  coupled  with  the  ad-    "  . 
[,      mitted  legality  of  the  state  statute,  the  fact  that  discoveries  were   As 
>^^--^-  made  in  shafts  2  and  3  upon  which  no  locations  were  made  does  not  „-^ 
^   I  -    in  any  manner  affect  the  validity  of  the  Tecumseh.     *     *     *  ^ 

r*  *^-f  .    ^Yhe  petition  for  rehearing  is  denied.    Petition  denied.  ^jj^  /•  1  L,  . 

/^<?.J  ,   ft  ^^y^   4tU&   y^Y^ 

ELECTRO-MAGNETIC  MIN.  &  DEVELOPMENT  CO.  v.  VAN 

■         ^  -.    .^  -  »       ^ AUKEN  AND  OTHERS'. 

>.  />v        1886.     Supreme  Court  of  Colorado.     9  Colo.  204,  11  Pac.  80. 

I  #0-^'  r^.    Action  in  support  of  an  adverse.   The  appellees  were  the  plain- 
•t^         tiffs  below. 

-  CC  Trial  by  jury,  and  verdict  for  the  plaintiffs. 

i  ^t^kJ^i   Elbert,  J.* — Section  7,  Gen.  Laws,  630,  provides  that  "any  open!  [^ 
i_.   cut,  cross-cut,  or  tunnel,  which  shall  cut  a  lode  at  the  depth  of  teiij  j  -*— 

'But  see  O'Donnell  v.  Glenn,  8  Mont.  248,  19  Pac.  302.    In  Gibson  v.  Hjul, 
32  Nev.  360,  108  Pac.  759,  762,  Norcross,  C.  J.,  for  the  court  said:    "Error 
.  is   assigned   in   the    finding   made  by   the   trial    court   that   a   vein,   lode,    or 

^^  rock  in  place  was  discovered  at  the  time  of  the  Beehive  location  or  in  sink- 

ing the  discovery  shaft.     It  may  be  seriously  questioned  whether  the  evidence 
shows  a  discovery  in  the  so-called  'discovery  shaft.'     The  evidence,  however, 
shows  clearly  that  the  defendant  Pardy  subsequently  found  valuable  ore  in 
^t  other  workings  upon  the  claim,  some  of  which  ore  was  extracted  and  shipped 

f^i  and  was  of  a  value  in  excess  of  $100  per  ton.     It  is  a  reasonable  deduction 

'   I  from  the  evidence  that  the  work  done  in  other  parts  of  the  claim  where  ore 

V         ^       was  unquestionably  discovered  was  more  than  the  equivalent  of  that  required 
^~Uf~f        for  a   discovery   shaft.     Conceding,   without   deciding,   that  this   finding  was 
I  ^^i       erroneous,  it  does  not,  we  think,  affect  the  result  in  this  case." 
^^^     .Thes.a.en,en.o,,ac.siso™«s^     ^^^^^^^  1,...^^ 


^ 


^H   \    -^  /-u-A,,  y-?wv.ft,jui         Discovery  work.  i)         ^  147  ^      '-' '^ 

\  I  feet  below  the  surface,  shall  hold  such  lode,  the  same,  as  if  a  discov-      : 
'  ery  shaft  were  sunk  thereon;  or  an  adit  of  at  least  ten  feet  in,  along"     -  -^ 
the  lode,  from  the  point  where  the  lode  may  be  in  any  manner  dis-  f^  *— ^ 
covered,  shall  be  equivalent  to  a  discovery  shaft."  {?u^  CT^ 

.      In  the  casejof  Grov  v.  Triiby,  6  Colo^  278^  it  was  held  that  while -i-f^    W^ 

^^i'  the  open  cut,  cross-cut,  or  tunnel  must  cut  the  lode  at  the  depth  of       ^ 

10  feet  below  the  surface,  there  was  no  such  requirement  in  the  case  '-"^-^^'ViSN 
of  an  adit;  that  while  there  was  no  express  requirement  of  depth, t^-'T*-^ H, 
the  development  must  always  be  such  in  its  dimensions  and  character^^ />  it^^,/ 
as  to  make  it  fairly  the  equivalent  of  a  discovery  shaft.  In  that  case^^  /V,»-i 
the  evidence  showed  that  "the  appellant,  in  lieu  of  a  discovery  shaft,  ^\^ 
opened  an  adit  on  his  lode,  beginning  at  the  surface  where  the  lodeH-vn;  ^< 
was  discovered,  and  running  in  and  along  the  lode  a  distance  of  i^yx^',*^ 
twenty  or  twenty-five  feet,  where  it  obtained  a  depth  of  eight  or,  ,^_j^  ^ 
nine  feet  below  the  surface."    In  this  case  the  evidence  shows  that'".  , 

the  defendant  company,  in  lieu  of  a  discovery  shaft,  opened  an  adit-'''^-^^^-*-^' 
on  its  lode,  beginning  at  the  surface  wdiere  the  lode  was  discovered,  <j\jt^  c 
and  running  in  and  along  the  lode  (well  defined  and  with  mineral)  ^  j' 
a  distance  of  fourteen  or  fifteen  feet,  where  it  obtained  a  depth  of  ■  ^ 
about  nine  feet ;  that  the  adit,  at  a  distance  of  about  six  feet  from  the  |t%j0-^ 
point  of  beginning,  entered  cover ;  and  that  the  remaining  nine  feet  yw«T^ 
were  under  cover  and  timbered.  The  court  below  rejected  the  ex-  •  .  .  i>J 
cavation  made  by  the  defendant  company  as  not  a  sufficient  "open,fUj»^  6crx 
cut,"  because  it  did  not  cut  the  lode  at  a  depth  of  10  feet  below  the  (>ou.^ 
surface.  There  was  no  error  in  this.  There  was  error,  however,  v^i^^ig^j^ 
rejecting  the  excavation  as  an  adit  because  it  was  not  under  cover.  l,„jx,4^ 
Every  adit  upon  a  hill-side,  if  continued,  must  enter  cover  at  some  ^__,,^^,.^ 
distance  from  the  point  where  the  excavation  begins, — at  what  dis-  -.  _^:^ 
tance  will  depend  upon  the  inclination  of  the  surface.  Supposing  the  O*^^^,, 
lode  to  outcrop,  the  point  where  the  excavation  enters  cover,  and  theft-tS^-u^ 
point  Where  the  lode  was  discovered,  would  never  concur,  except  ^-»»«^aj-« 
when  the  ground  presented  a  perpendicular  face.  The  term  "adit,"  a  ^.-^^  , 
as  the  legislature  understood  it,  is  what  must  govern.  In  this  section  X-^^^j^xm 
they  were  legislating  with  reference  to  an  actual  condition  of  things,  » *'*'*Tn 
— with  reference  to  mining  lodes  so  situated  as  to  be  reached  by  ov  K\)o^ 
means  of  horizontal  excavations.  To  an  excavation  "in  and  along  a -^^  ^^^ 
J     lode"  they  applied  the  term  "adit,"  and  fixed  the  point  where  "the  >     ^^ 

^'  lode  may  be  in  any  manner  discovered"  as  the  initial  point  from . 

which  the  development  was  to  be  measured.  The  point  at  which  the  '*^\^^ 
excavation  enters  cover  was  not  mentioned,  and  clearly  was  not  in  ft^  (^ 
\    contemplation.    The  effect  of  the  ruling  of  the  court  was  to  fix      ^^,^^ 
\  "cover"  as  the  initial  point  of  measurement.    This  is  in  derogation  »^ 
of  the  express  provision  of  the  statute.  We  find  nothing  in  the  tech- IT •*^' 
nical  meaning  of  the  word  that  rejects  such  portion  of  the  excava-iNs^w 
tion  at  the  mouth  of  the  adit  as  may  be  in  the  nature  of  an  open  cut  as  .|  i,  ?  ^ 
not  being  a  part  of  the  adit.   As  the  term  is  used  in  the  statute,  the  lu,^-^ 
legislature  must  have  contemplated  that,  as  to  the  10  feet  required,  <,,>^^^ 


nif^ 


t.  148  LOCATION    OF    LODE   AND    PLACER   CLAIMS. 

it  might  be  either  open  or  under  cover,  or  open  in  part  and  under 
cover  in  part,  dependent  on  the  nature  of  the  ground.  In  the  con- 
struction of  statutes,  general  terms  are  to  receive  such  reasonable 
interpretation  as  leaves  the  other  provisions  of  the  statute  practically 

,    ^  operative. 

>  '..  Although  the  discovery  and  location  of  the  Willamette  lode  were 
^  ■'  ■  prior  in  point  of  time  to  the  location  of  the  lode  of  the  defendant 
company,  there  was  much  conflict  in  the  testimony  as  to  the  depth  of 
the  discovery  shaft.  As  the  instructions  of  the  court  practically  pre- 
cluded a  finding  for  the  defendant  company,  it  remains  doubtful 
whether  the  verdict  of  the  jury  in  favor  of  the  plaintiff  was  not  based 
upon  that  fact,  rather  than  upon  evidence  showing  a  legal  discovery 
shaft  in  the  case  of  the  Willamette.  However  this  may  be,  the  de- 
fendant was  entitled  to  have  the  whole  case  submitted,  under  proper 
instructions. 

The  judgment  of  the  court  below  is  reversed,  and  the  case  re- 

)  ^trxi  manded.^  ^  , 

C^  i  f^  h^  ^      MURRAY  ET  AL.  V.  OSBORNE  et  al. 
fCt^^    ^•W^r*'i9io.     Supreme  Court  of  Nevada,     hi  Pac.  31. 

^^  Action  by  Sutherland  Murray  and  another  against  Charles  H.  Os- 
'i)''^'^  >horne  and  another.  From  a  judgment  for  plaintiff's,  defendants  ap- 
t>*-^     peal.  Affirmed. 

t,Mt^\         An  understanding  of  the  facts  of  the  main  issues  involved  and  the 

\^     conclusions  of  the  trial  court  may  be  obtained  from  the  following  ex- 

-iKi*^     tract  from  the  opinion  of  the  district  judge : 

fj\       "This  action  was  brought  to  recover  possession  of  and  to  enjoin 

1^'^  the  defendants  from  trespassing  upon  the  Juanita  and  Juanita  No.  i 

"'^"'^i   mining  claims,  situate  in  the  Old  Spanish  Belt,  in  this  county  and 

^  ^-i^vt^tate.  The  plaintiffs  allege  in  their  complaint  that  ever  since  May  5, 

^'^^^  ('  i  1906,  they  have  been  the  owners  of  and  in  the  possession  of  this 

^  -^f      ground,  and  that  on  or  about  November  15,  1907,  the  defendants 

}  f « V      wrongfully  entered  upon  the  same  and  commenced  mining  thereon, 

H-i.^       and  extracting  and  removing  therefrom  quantities  of  gold  and  silver 

.  bearing  quartz,  and  that  they  extracted  ores  therefrom  of  the  value 

"'  ^r"    of  $2,000.  .  *     ^'=     *     The  defendants,  by  their  answer,  deny  all  of 

H.^-a/     ^i^g  allegations  of  the  complaint  and  affirmatively  allege  that  on  or 

about  September  5,  1907,  they  located  the  premises  in  controversy 

^^^  under  the  name  of  the  'Combination  mining  claim,'  and  allege  that 

^"'^ >  they  entered  into  possession  thereof  under  and  by  virtue  of  this  loca- 

"^^  ''"^   tion.    They  also  allege  that  whatever  rights  the  plaintiffs  may  have 

*^'        had  to  the  ground  were  lost  and  forfeited  through  their  failure  to 


,    .        '  See  Costigan,  Mining  Law,  182-183. 


,ijL«^^wCt    v«<.*^  K.vi^  ft-wO    ^  ^  "•- ■^'^^-.  •js-i    rf%..ww 


^'fcfe.i 


mark  the  boundaries,  and  to  perform  the  requisite  amount  of  discov-  Jf*^^-^ 
ery  work  in  accordance  with  the  statute  in  that  behalf.  Practically  t*-^'.^ 
all  of  the  testimony  was  directed  to  the  failure  of  the  plaintiffs  to  ,:?i  ^  '■  ;„. 
perform  the  discovery  work  upon  the  Juanita  claim,  and  there  seems  /  [^. 
to  be  no  doubt  but  that  all  of  the  acts  of  location  were  performed  *'°V''^  t'*" 
upon  the  Juanita  No.  i  mining  claim.  It  will  be  unnecessary,  there-  ^^f^ 
fore,  to  consider  in  detail  the  sufficiency  of  the  acts  of  location  upon-,^  k  ^ 
the  Juanita  Xo.  i  mining  claim,  and  I  will  therefore  direct  my  ob-  7^-^^^  ^ 
servations  entirely  to  the  Juanita  claim.  The  evidence  shows  without '•'^'•^  Lj 
conflict  that  an  old  tunnel  was  run  upon  the  Juanita  claim  about  40^^^^^*"^ 
years  ago,  but  the  evidence  does  not  disclose  by  whom  this  work  was^i^r^-'^ 
done,  or  whether  the  parties  who  did  it  acquired  any  right  or  title  /  D  H 
to  the  ground  or  not.  A  number  of  witnesses  were  called  by  theyt*^-L<j 
plaintiffs  who  testified  positively  that  the  plaintiffs  performed  the  ••  ^^^ 
necessary  amount  of  discovery  work  upon  the  Juanita  claim,  and  that  J^  "^ 
this  work  consisted  of  cleaning  out  for  a  distance  of  about  15  f eet  ^^'^  ^"^ 
the  approach  to  the  old  tunnel,  and  of  cleaning  out  the  old  tunnel  for  Vva^M' 
a  distance  of  about  30  feet,  and  also  of  driving  the  tunnel  ahead ;  that  M^  ■  ^ 
is  to  say,  extending  the  old  tunnel  a  distance  of  five  or  six  feet.  On  VU-i-i 
the  other  hand,  many  witnesses  were  called  on  behalf  of  the  defend-  ^.x-f^M. 


ants  who  testified  with  equal  positiveness  that  they  had  visited  the  Ci-,,.^,^ 
ground  prior  to  and  subsequent  to  the  location  of  the  Jaunita  claim,  r^7< 
and  that  this  work  had  not  been  done.     *     *     *  ^  j    J 


The  evidence  also  shows  that  the  roof  of  the  tunnel  is  caving  yv\vM^^a 
ground,  and  that  a  portion  of  it  caved  after  this  discovery  work  was  /\-j^,»jy^ 
done.  It  is  possible,  therefore,  that  after  Phipps  and  Jacobs  per-i-i--— -^ 
formed  the  discovery  work,  as  they  testified  they  did,  a  part  of  the  Koa  -  ^ 
roof  of  the  tunnel  may  have  caved  and  partly  filled  up  the  tunnel,  ^p^.^-^ 
and  that  the  defendants'  witnesses  who  visited  the  ground  months  jw  v^lL^ 
afterwards  may  have  seen  the  tunnel  partly  filled  up  and  concluded  ,^jjj^^^_g^ 
from  this  that  no  change  had  been  made  in  the  tunnel,  and  that  no  jj^  ^^ 
work  had  been  done  therein.  But,  be  that  as  it  may,  a  number  of  ^^,  ^ 
reputable  and  disinterested  witnesses  testified  that  the  work  was  ^'*^*^ 
actually  performed,  and  this  testimony  established  a  prima  facie  case/^H^  y^ 
in  favor  of  the  plaintiffs,  and  the  testimony  introduced  in  behalf  of  vV  *A^  * 
the  defendants  is  not  in  my  judgment  sufiacient  to  overcome  it.  '-^  *  *j^jjvUvr> 

Talbot,  J.   (after  referring  as  above  to  the  recited  part  of  the-^i^^*, 
opinion  of  the  district  judge).'' — On  behalf  of  appellant,  it  is  urged  I  ^Q 
that  the  evidence  does  not  support  the  findings  or  judgment,  which  u  ,^ i^ 
was  rendered  in  favor  of  respondents  and  plaintiffs.     *     *     *  ^  K^.^ 

As  it  appears  from  the  opinion  of  the  district  judge  that  the  tun-  /^^  /^  \ 
nel  was  extended  only  5  or  6  feet  by  the  plaintiffs,  and  there  is  no  '  ^  ** 
evidence  to  indicate  that  it  was  extended  further,  was  such  extension  L\  t"^-^ 
in  addition  to  the  cleaning  out  of  the  cut  for  15  feet  and  of  the  tunnel «+V;i,  l^'-^ 
for  30  feet,  as  determined  by  the  trial  judge  under  the  conflicting  tes-  ^LkstAT* 

"  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted,      i,-^  ^..^Ksn^^'t^^-^^ 

/    r. ^         I     yt^  ^^-V(  ,oJ^  ^  t-^^^u^-fe  -  K^£ 


"t^S 


150  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 


SWst" 


timony,  sufficient  location  work  to  meet  the  requirements  of  the  stat- 
^L-  ute  in  force  at  the  time  the  Juanitas  were  located?  Section  209, 
Comp.  Laws,  as  amended  in  1901  (page  97,  c.  93),  directs :  "Before 
the  expiration  of  ninety  days  from  the  posting  of  such  notice  upon 
the  claim  the  locator  must  sink  a  discovery  shaft  upon  the  claim  lo- 
^  cated  to  the  depth  of  at  least  ten  feet  from  the  lowest  part  of  the  rim 

•  ;       of  such  shaft  at  the  surface,  or  deeper  if  necessary  to  show  by  such 
work  a  lode  deposit  of  mineral  in  place.  A  cut  or  crosscut,  or  tunnel, 
i  ,         which  cuts  the  lode  at  a  depth  of  ten  feet,  or  an  open  cut  along  the 
V)  ledge  or  lode  equivalent  in  size  to  a  shaft  four  feet  by  six  feet  by 

ten  feet  deep,  is  equivalent  to  a  discovery  shaft."    Section  214  pro- 
vides :   "The  relocation  of  abandoned  lode  claims  shall  be  by  sinking 
a  new  discovery  shaft  and  fixing  new  boundaries  in  the  same  manner 
as  if  it  were  the  location  of  a  new  claim ;  or  the  relocator  may  sink 
the  original  discovery  shaft  ten  feet  deeper  than  it  was  at  the  time 
-  <-      of  abandonment,  in  which  case  the  record  must  give  the  depth  and 
yj       dimensions  of  the  original  discovery  shaft  at  the  date  of  such  relo- 
'  cation,  and  erect  new  or  adopt  the  old  boundaries,  renewing  the 

posts  or  monuments  if  removed  or  destroyed.    In  either  case  a  new 
location  stake  shall  be  erected.    In  any  case,  whether  the  whole  or     ^ 
•part  of  an  abandoned  claim  is  taken  the  record  may  state  that  th©^^ 
'  whole  or  any  part  of  the  new  location  is  located  as  abandoned  pro'p-  v^ 
erty.    If  it  is  not  known  to  the  relocator  that  his  locatioii..is*'on  an^^^ 
abandoned  claim,  then  the  provisions  of  this  section  do-lfiot  apply."      X 
■j,  A      It  is  argued  for  appellants  that,  if  the  extension  of  the  tunnel  for 
•'^^^      less  than  10  linear  feet  was  sufficient  to  make  a  location  good,  the 
*^*'      amount  of  earth  required  to  be  removed  could  be  reduced  to  one 
^i\        shovelful.   But,  if  it  be  conceded  that  the  extension  of  the  tunnel  for 
^       a  distance  of  six  feet  would  not  be  sufficient,  it  remains  for  us  to  de- 
•^  '      termine  whether  plaintiffs  were  entitled  to  credit  for  removing  the 
^'      caved  dirt  from  the  cut  and  tunnel,  which,  according  to  the  evidence, 
1^15^0  may  have  been  made  30  or  40  years  previously,  and  possibly  before  «      ^ 
/         the  laws  now  controlling  the  location  of  mining  claims  were  in  force.'^'*^ ' 
^'  ^v'    If,  after  such  a  long  period,  the  earth  which  had  been  caved  and  ^^a/OJ 
-.  o^^'^cked  may  not  be  considered  in  the  nature  of  new  ground,  still  if  '|U4  < 
L  {ft    ^^^  locators  removed  several  times  the  quantity  of  earth  or  rock  de-^^,^^ 
^      '^     fined  by  the  statute  and  more  than  the  equivalent  of  the  labor  nec'es-  ^^^ 
jJl         sary  to  do  work  in  new  ground,  and  this  work  was  done  in  connection 
*^        with  the  extension  of  the  tunnel  on  the  ledge  and  apparently  all  to  ^^S 

^.  the  best  advantage  for  the  development  of  the  mine  and  in  good  faith,  f* 
llcJ[/\'  we  believe  that  was  sufficient.  The  extension  of  the  tunnel  for  5  or  pH 
..^j;,,  6  feet  amounted  to  one-half  or  more  of  the  240  cubic  feet  of  earth  ('3^ 
A^  "  required  by  the  statute  to  be  excavated,  and  if,  as  testified  by  wit-  A, 
•^^  nesses  for  the  plaintiff,  about  1,000  cubic  feet  was  taken  out  of  the  ^ 
^'  tunnel,  this  necessarily  resulted  in  the  removal  by  the  plaintiffs  of  ^ 
h  ^)  several  times  the  quantity  of  earth  required  to  be  excavated  in  new  ^ 
^*       ground  and  apparently  more  than  the  equivalent  of  the  work  which  .^y 


f^ 


DISCOVERY    WORK.  I5I     jX-f  *^ 

would  have  been  required  if  it  had  been  in  new  ground,  and  this        » i 
work,  including  the  extension  of  the  tunnel,  was  as  much  or  more  ^  "n-? 
for  the  benefit  of  the  claim,  and  was  a  compliance  with  both  the  let-    ."  , 
ter  and  the  spirit  of  the  statute.  i^ 

There  is  no  evidence  indicating  whether  any  location  had  been    [""^ 
made,  noticed,  or  staked  o.i  the  ground  at  the  time  the  tunnel  was   fi>^J* 
first  constructed,  and  it  does  not  appear  that  the  locators  of  the  Juani-  ^^^^^  , 
tas  knew  that  the  ground  had  been  covered  by  an  abandoned  claim,  ^     ^ 
or  that  they  were  aware  of  monuments  or  boundaries  which  would  T^-^ 
have  made  it  possible  for  them  to  describe  a  part  of  all  of  the  ground  'y^^^^ 
as  being  abandoned.  Under  these  circumstances,  and  under  the  pro-  >|/j^* 
vision  in  section  214,  Comp.  Laws,  that  in  any  case  where  the  whole  »  Hfy 
^^^  "    or  part  of  an  abandoned  claim  is  taken  the  record  may  state  that  all  JJ'U-O' 
"^      or  part  of  the  new  location  is  on  abandoned  property,  and,  if  it  is  not  '^-c\. 
*-HwNit  known  to  the  locators  that  the  location  is  on  an  abandoned  claim,  the  ^tu,. 
,^      provisions  of  that  section  do  not  apply,  the  certificate  was  not  de-    ^ 
J.  i^     fective  for  failing  to  state  that  the  location  was  made  on  abandoned  '  '     "' 
vf    ground.   It  has  been  held  that  such  a  statement  acts  as  an  estoppel,    '  ^  '  ^ 
'•^Jlf    and  prevents  the  locator  making  it  from  denying  that  the  abandoned  Ju^  c 
^"^^    location  had  been  properly  made.   Ordinarily  forfeitures  are  not  fa-  ^j^^  ^ 
«  *^    vored,  and  a  very  strict  or  severe  construction  ought  not  to  be  placed  »    ' ' 
iA      on  the  statute  when  the  prior  locators  have  proceeded  in  good  faith  *'^-  f> 
It^t.  )  and  apparently  have  done  all  that  is  required  by  a  fair  construction   ^  tM- 

of  the  laws  relating  to  mining  locations.     *     *     * ^^ — — p 

^     \        The  j  udgment  is  affirmed.  \'  VlllCUT'~'"4r  "^^ 

i«-4^  ti   •'v^-fV|  *r  /uPTON  ET  AL.  V.  LARKIN  et  al.  V'"tS*Coij^t'  u. 

»  i^^^.T««R.     Supreme  Court  of  Montana.     7  Mont.  449,  17  Pac.  728.  .  .   ,  .^^ 

^  Bach,  T-'— This  suit  was  begun  under  Rev.  St.  U.  S.  §  2326,  to    .    "^*, 

^^*     determine"  the  right  of  adverse  claimants  to  certain  mining  property  T^ 
^^■^v'lCrituated  in  Silver  Bow  county,  Mont.   The  defendants  had  filed  an  ^^ 
.,«^  application  for  patent  to  mining  ground,  including  the  ground  in  ^-^^^ 
^^    «  controversv,  as  the  owners  of  the  "Smelter  Lode  Claim ;"  the  plain-  • 
^>^^     tiffs  "adveVsed"  the  application,  and  thereafter  commenced  suit  as   ,. 
,4.,^     required  by  the  United  States  statute  for  adverse  claimants,  alleging  ^.^  ^^ 
"^•l     title  to  the  premises  under  a  claim  known  as  the  "Comanche  Lode      ^ 
2j        Claim."   The  defendants  deny  plaintiffs'  title,  and  claim  title  to  the  *-^^ 
*3        ground  in  controversy  as  part  of  the  "Smelter  Lode  Claim."    Trial    \v^' 
"^        was  had  in  the  district  court,  verdict  was  for  the  plaintiffs,  and  judg-   .,    ^, 
ment  was  entered  accordingly.   A  motion  was  made  for  a  new  trial,         .., 
which  was  denied.  The  appeal  is  taken  from  the  judgment,  and  from    )^  > 
the  order  denying  a  new  trial.   We  will  consider  in  their  order  the  -^.cj, 

^  Parts  of  the  opinion  are  omitted.  ^  ^  tX^^^^^    ^^^ 

Uj^  w^^H^tx^  K^  6^  ^^.  ^^l"^^';T^.^ ^^^- 


\W  f         V     ^        -     ■^ "  '      I^N.         I  \'V  \J      -    -•    v*^"^  '»-  »»«-^        T   va-^„/v 


152  LOCATION    OF    LODE   AND    PLACER    CLArils/    '-^'°''^«-<-«--^ 

Vf    alleged  errors  relied  upon  by  the  appellants,  at  least  so  far  as  the 
"^     record  will  permit.     *     *     * 

The  next  error  alleged  is  that  the  evidence  shows  that  the  Shan- 
j  .,,     non  lode  claim  as  patented  includes  the  discovery  of  the  Comanche 
^J     lode  claim;  and  counsel  for  appellant  cite  Gzuillim  v.  Donnellan,  115 
^\      U.  S.  45,  5  Sup.  Ct.  Rep.  1 1 10.  In  that  case  the  discovery  relied  upon 
^     by  the  plaintiffs  was  entirely  included  within  the  boundaries  of  a 
claim  that  was  patented  after  the  plaintiffs'  location ;  but  in  the  case 
at  bar  testimony  was  introduced  by  plaintiffs  tending  to  show  that 
^'       only  a  portion  of  plaintiffs'  discovery  shaft  is  included  within  the 
'  -'       Shannon  claim,  and  that  the  other  portion  is  included  within  the 
line  of  the  Comanche  lode  claim..   The  jury  was  instructed  as  to  the 
law  upon  this  point,  at  appellants'  request.   Thev  were  told  that  the 
^p.   discovery  must  have  been  made  "upon  the  claim'  located;  but,  if  the 
leijp'r  ?^^c>""d  upon  which  the  claim  is  located  is  appropriated  ground, — 
j-J^    that  is  to  say,  ground  that  has  been  previously  located,  and  is  at  the 
^    time  held  as  a  quartz  lode  claim  by  others, — then  such  a  discovery 
*^-^  •  will  not  sustain  a  location,  and  any  location  made  by  virtue  thereof 
■^     will  be  void.   And  if  you  find  in  this  case  that  the  discovery  of  the 
kw%,*v  Comanche  lode  claim  was  made  upon  the  Shannon  lode  claim,  then 
you  will  find  that  the  location  of  the  Comanche  lode  was  void,  and 
the  plaintiffs  acquired  no  rights  thereunder."   And  there  were  other 
instructions  to  the  jury  to  the  effect  that,  if  the  discovery  shaft  of 
plaintiff  was  within  the  Shannon  lode  claim  as  patented,  then  plain- 
tiffs could  not  recover.    The  jury  find  specifically  that  a  portion  of 
^^     the  discovery  is  south  of  the  south  boundary  line  of  the  Shannon 
claim  as  patented,  and  within  the  lines  of  the  Comanche  as  located. 
There  is  evidence  to  sustain  the  finding,  and  such  a  finding  of  fact  is 
^-t     sufificient  to  show  a  valid  discovery;  therefore  the  verdict  of  the 
^     jury  cannot  be  disturbed  upon  that  ground.     *     *     * 
^^^,       The  testimony  shows  that  the  Comanche  lode  claim  was  located  in 
[^•^-^  January,   1879;  and,  that  in  June,   1879,  the  Shannon  lode  claim, 
wA-    which  lies  north  of  the  Comanche,  was  patented.    The  south  line  of 
^    the  Shannon  lode,  as  the  testimony  shows,  runs  directly  through  the 
.^jj^  discovery  shaft  of  the  Comanche,  in  such  a  manner  that  the  shaft, 
/        with  the  exception  of  a  strip  about  19  inches  wide,  is  included  within 
[a^    the  Shannon  lode.    Plaintiffs  filed  no  adverse  claim  at  the  time  that 
'I'l     application  was  made  for  said  patent.    There  is  testimony  showing 
j>^     that  the  vein  upon  which  the  discovery  of  the  Comanche  is  based, 
dips  from  the  north  to  the  south.   Such  are  the  facts.     *     *     -^ 
Judgment  and  order  denying  a  motion  for  a  new  trial  are  affirmed, 
•^•"^'with  costs.* 
I 

For  a  discussion  of  the  question  of  whether  two  locations  can  be  claimed 

1^  by  one  discovery  shaft  so  cut  by  the  lines  of  the  locations  as  to  give  part  of 

^  .        the  shaft  and  of  the  discovered  strike  of  the  vein  to  each,  see  Costigan,  Min- 

,r-.     ing  Law,  179-180.  ^       ^         ^  ^        \       4 . 


■wr^ 


— POSTED    NOTICES.  153     p^^{^ 

Section  2.— Posted  Notices.  ,.  .     ^-y'p 

COLORADO  STATUTE."  fCUe-t  ^\^'  <- 

Before  filing  such  location  certificate  the  discoverer  shall  locate  his  claim-, 
^    .     *     *     *  'rt^.J^^ 

Second— By  posting  at  the  point  of  discovery  on  the  surface  a  plain  sign  ^^j^  ^ 
or  notice  containing  the  name  of  the  lode,  the  name  of  the  locator,  and  the  .^...^uu- 
date  of  discovery.— Rev.  St.  Colo.  1908,  §  4197.  ^^   « 

McCLEARY  et  al.  v.  BROADDUS  et  al.    S*^^*^**^    ^ 
1910.     Court  of  Appeals  of  California,     hi  Pac.  125.  ^^  «e<s»«-j» 

Action  by  C.  E.  McCleary  and  others  against  W.  D.  Broaddus  ^^^  ^ 
and  others.  Judgment  for  plaintiffs,  and  defendants  appeal.  Af-  f^"j  ^ 
firmed.  .     »  ► 

Burnett,  J.^° — The  action  was  brought  to  quiet  title  to  a  certain  +v«..r-,,, 
mining  claim  in  :\Iodoc  county,  known  as  the  "Mountain  Sheep  Min-  ^/i,,^-^ 
ing  Claim."  The  defendants  contend  that  the  land  is  included  within  Ty 
their  locations,  known  as  the  Evening  Star,  White  Quartz  and  Klon-  --^'^-e" 
dyke  mining  claims,  and  the  determination  of  the  case  involves  the  \ 

question  of  prior  location  and  appropriation  as  to  the  respective 
claimants,  and  whether  up  to  the  time  of  the  trial  plaintiffs  had  done  -  "") 
everything  required  of  them  by  law  to  maintain  the  validity  of  their  .-     ( j 
claim. 


The  parties  are  substantially  agreed,  except  possibly  in  one  par-  '  ,  ^ 
ticular,  as  to  what  steps  are  necessary  to  make  and  maintain  a  valid  ['**^ 
mining  location.  Indeed,  the  proceeding  has  been  frequently  the  sub-  h.^ 
ject  of  adjudication,  and  concerning  it  there  would  appear  to  be  lit- 
tle room  for  controversy.  A  general  and  comprehensive  statement  ^t^ 
of  what  is  required  is  found  in  the  decision  of  the  United  States  Su-  5 

preme  Court  in  Erhardt  v.  Boaro,  113  U.  S.  535,  5  Sup.  Ct.  564,  28  ^J**-* 
y    L.  Ed.  1 1 13,  wherein  it  is  said:   'Tn  all  legislation,  whether  of  Con-  ^^^^ 
[)A  /     gress  or  of  the  state  or  territory  and  by  all  mining  regulations  and  ^ 
^  ^    rules,  discovery  and  appropriation  are  recognized  as  the  source  of  w*-'^ 
rcJ"-    ^title  to  mining  claims,  and  development  by  working  as  the  condition    |^.^^ 
^  yf  of  continued  ownership  until  a  patent  is  obtained."   The  only  uncer- 
P^-i  'tainty  involved  in  the  foregoing  statement  is  as  to  the  exact  meaning  /*  :■  ■ 
^KT    of  appropriation.    Ordinarilv  this  is  effected  in  the  following  man-    ^^  ^ 
J^'-^ier^as  pointed  out  by  the  Supreme  Court  in  Dwinnell  v.  Dyer,  145 

Cal.  21,  78-.Pac.  253,  7  L.  R.  A.  (N.  S.)  763:   "The  posting  of  no-    -' 
tice  at  or  neaFtiie  point  where  the  ledge  is  exposed ;  next  the  record- 
ing of  notice;  next  the  marking, of  boundaries."    But,  in  the  Ian-   ,    ^^, 
gulige  of  the  learned  Chief  Justice?  "It-.is  indeed  universally  held  ^^ 
that,  when  every  act  necessary  to  complete  ^ocation  has  been  done  Qjrg/ 

"  See  note  1  ante.  hS^  ~K    CUdf-wv  <i*M)i   jp  y^^ 


I  f~xJi.  r\->~-tc  .    ^/t..{,/-/^'Vt<  i^-a-cJio>v'    v^rtAJ-^f    w-«mc -•  •'a-^-^x-v  -%^71/v*^    ''uv~- 
^  j-   A-^JUo  U-AA,  '|fofe„   iAA^t^^-f-Va^  .^'ju4 /-^-rvx/v  L*-.  y-'Cvi?.  'HxVoaMy  ^^^'< 

y  154  LOCATION  OF  LODE  AND  'pLACER  CLAIMS.  ' 

>ii  <5t^-   ''^^^^^^  ^"  adverse  claim  has  accrued,  the  order  in  which  such  acts 

j^     have  been  performed  is  immaterial." 
t  ^  Section  2324  (U.  S.  Comp.  St.  1901,  p.  1426)  of  the  statutes  of  the 

ji^x.         United  States  makes  it  essential  that  "the  location  must  be  distinctly 
.     ^^  marked  on  the  ground  so  that  its  boundaries  can  be  readily  traced." 

rfe^.^  In  commenting  upon  this  requirement  the  Supreme  Court  in  Dona- 
^"'^^^  hue  V.  Meister,  88  Cal.  131,  25  Pac.  1099,  22  Am.  St.  Rep.  283,  de- 
(>-U.'v^  clared  that  it  is  the  "main  act  of  original  location."  In  Eaton  v.  Nor- 
r*  ^^^  ris,  131  Cal.  563,  63  Pac.  856,  it  is  said  that  "the  ultimate  fact  in  de- 
^  ^"^  termining  the  validity  of  a  location  is  the  placing  of  such  marks  on 
cnr\,^    the  ground  as  to  identify  the  claim,  or,  to  use  the  language  of  the 

i»^    statute,   of   such   a   character  that   the   boundaries   can   be   readily 
.  traced."    As  to  the  purpose  of  the  posted  notices,  it  is  stated  that 

^  ^^  ■  they  may  be  an  aid  in  determining  the  situs  of  the  monuments  (Lind- 
\^^  \^^  ley  on  Mines,  §  Z7Z)>  ^^^  therefore  "constitute  a  part  of  the  marking 
?  *c.  t^^  *^°^^  every  other  object  placed  on  the  ground  for  the  purpose  of 
/tV  ^  '''^marking  it  or  otherwise,  if  it  in  fact  does  help  to  mark  it." 
A^cV^vM  Did  the  said  Fisher  [the  grantor  of  plaintiffs],  in  compliance  with 
zX  1^     these  requirements  of  the  law,  make  a  valid  location  of  the  claim  in 

^^  question  ?  There  is  evidence  in  the  record  that  he  made  the  discovery 
'^*^  ^'^  on  the  1st  day  of  August,  1905.  *  *  *  Again,  he  testified  that 
J,  KA.t'^w^nDn  the  4th  of  August,  1905,  one  Lester  Bonner  wrote  a  notice  of 
I  'ft*^  location,  and  Fisher  signed  it  and  posted  it  on  a  tree  on  the  northeast 
,j^  vG.|JV  corner  of  the  claim,  and  built  a  monument  there  of  stone  and  pieces 

iv.        *of  decayed  wood  about  four  feet  high.   He  went  back  the  next  day 

>-HVt^^   and  "put  up  the  northwest  and  center  monuments,  and  then  pros- 

ir.  >tA,A>-ij^pected  on  the  ground  for  quite  a  while.    On  August  17th  I  put  up 

»*    ,.  the  northeast  side  center,  the  southeast  corner,  the  south  or  southeast 

^  ^^    '  end  center,  and  the  southwest  corner,  and  the  southwest  side  center 

vlM/^vtv*  fnonuments  of  stone  about  three  feet  high  so  that  the  lines  of  the 

Jk,\rt      boundaries  could  be  readily  traced  from  those  monuments."    As  to 

tA-  6  fl^t  what  was  done  on  the  4th  of  August  and  subsequently  Fisher  is  cor- 

,V  roborated  by  other  witnesses.  There  is  evidence,  then,  that  every- 
^  v-'V  thing  was  done  by  Fisher  which  was  necessary  to  effect  a  valid  lo- 
-v\/<A       cation. 

1ft.  riA  *»"'■''  There  is  some  criticism  of  the  fact  that  his  notice  was  not  posted 

i^    until  the  said  4th  of  August,  and  that  it  was  placed  some  distance 

'^•\i''^^      from  the  point  of  discovery.   As  to  this,  it  may  be  said  that  there  is 

/v/OVvJ?   "o  evidence  of  the  existence  of  any  mining  custom  or  regulation  in 

'  the  district  relating  to  the  subject,  and  there  is  nothing  in  the  stat- 

v/VlA\^   ute  requiring  the  posting  of  notice  on  the  day  of  discovery  or  pre- 

/yC/l*A    scribing  where  it  shall  be  posted  on  the  claim  or  at  all.   As  we  have 

y    vv>>  )^|j.g^^ly  seen,  the  practice  is  as  suggested  by  appellants,  but  the  es- 

j,>Aj^  A  sential  things  are  the  discovery  and  the  "marking  of  the  location 

«L  upon  the  ground  so  that  the  boundaries  may  be  readily  traced."   And 

r»^t*M)  it  is  conceded  that  the  discoverer  has  a  reasonable  time  in  which  to 


U-*^    v^  •.«>^0^  ^-^-^T^  fe^^     ^^/-^W    ^  ^  •  Vs?^  J->^ 

The  claim  of  appellants,  on  the  other  hand,  rests  upon  the  discov-  j  i-'^^^ 
ery  and  the  posting  of  a  notice  on  the  second  day  of  August  and  the  -fut  Vt*i 
marking  of  the  boundaries  on  a  date  subsequent  to  that  of  respon-  4i*<w<.'' 
dents.  The  location  notice  posted  by  appellants  the  second  day  of  t^^lr 
August  and  recorded  on  the  first  day  of  September  was  ifl,  the  follow-  ^"^■'^O'^ 
ingform:  yuoir  A<X*^«*-<J3U  t^  tUj^  ^ 

'Location  ]\otice.    ^^-"""'^  —         V\  v»  ^  > 

"Notice  is  hereby  given,  that  we,  undersigned*  citizens,  having  tU-o^ 
complied  with  the  laws  of  the  United  States  and  local  laws,  have  lo-  ^tMC  ^ 
cated  and  claim  1,500  feet  in  a  northwesterly  and  southeasterly  di-  ^»^^  ^ 
rection,  and  300  feet  on  each  side  of  this  location  monument.    This  .       , 
monument  is  the  beginning  point  of  this  claim.    This  claim  shall  be ''^■'^*^I 
known  as  the  White  Quartz.  Located  the  22nd  day  of  August,  1905."  <iJ^^  ^ 
It  is  admitted  by  appellants  that  their  location  notices  did  not  suffi-  ^  A*V» 
ciently  mark  the 'boundaries  of  the  claim,  but  their  contention  is^i,^^^^ 
"that  location  notices  are  sufficient  to  hold  mining  claims  for  a  rea-  ,^.^^j. 
sonable  time  in  which  to  mark  the  boundaries."    Ordinarily  that  is  ^  ^^ 
true,  because  the  notice  is  evidence  of  an  original  discovery,  or  else  ^  |TT 
the  mining  customs  or  rules  require  the  posting  of  such  notice.    But  M   «*^ 
here  we  have  a  prior  discovery  on  the  part  of  respondents  and  a  prior  <t  O** 
marking  of  the  boundaries.    The  discovery  is  manifestly  the  source  ur^  *■ 
of  the  title,  and  vests  the  discoverer  with  the  prior  right  to  complete  c^.^^ri^ 
his  location.   He  could  only  lose  this  prior  right  to  perfect  his  claim .  .^^^T/ 
by  a  failure  within  a  reasonable  time  to  mark  his  location  so  that  the  U'*"^*^ 
boundaries  could  be  traced  upon  the  ground.    But  respondents  not  ^JUJl  ♦ 
only  proceeded  within  a  reasonable  time  to  perform  this  ultimate  ^^ 
act,  but  before  appellants  made  any  effort  to  mark  said  boundaries.^     li^  J 
I  f      The  mistake  of  appellants  is  in  the  contention  that  the  prior  dis-^>*<-i-* 
!  !  covery  must  be  accompanied  by  a  prior  posting  of  notice  in  order  a.^  ^ 
to  ve'^t  the  claimant  with  the  prior  right  to  complete  his  location.^^^^^^^^^ 
"But  the  mining  law  of  the  United  States."  as  held  in  Anderson  ^/^^^ 
■  ^-       Caughey,  3  Cal.  Api^  J^,  <'^4  Pac.  224,  "does  not  require  the  notice  v^Wxfl 
»of  location  to  be  posted  or  recorded  (Carter  v.  Bacigalupi,  83  Cal.  VvTUcj 
187  [23"Fac":  36r]  ;- Dwinnell  V.  Dyer,  145  Cal.  12  [78  Pac.  247,  7  ^^^ 
L.  R.  A.  (N.  S.)  763] )  ;  and  i^t  is  only  where  the  local  customs  and  ^7^ 
rules,  of  the  miners  of  the  district  require  these  steps  that  they  are  Cr(>*^ 


*     * 


necessary.       =i^     ^     ^ 
""WT'can  see  no  reason  to  interfere  with  the  conclusion  of  the 
learned  trial  judge,  and  the  judgment  and  the  order  are  affirmed.^^ 


"In   some  jurisdictions   it   is   customary  to   have   only  one   posted   notice      ,^^_^ 
which  is  known  as  the  location  notice;  in  other  jurisdictions  it  is  customary,    .  ^^^ 
or  a  statutory  requirement,  to  have  a  notice  known  as  the  discovery  notice  ^V<d-V 
put  up  at  the  time  of  discovery,  and  later,  at  or  after  the  marking  of  boun-   ^  j^ 
daries,  to  have  a  posted  location  notice  \xhich  defines  more  fully  the  general    ?  WK^-- 
position  of  the  claim.  (;>  >v>W^^^</^    i^.-t^N   l.\   ^^s.k^x^M'^CK^^A^'^t^sjy^    ^ 


r         *^      156  LOCATION    OF   LODE   AND   PLACER   CLAIMS.  » 

i^v^jJk.  TREASURY  TUNNEL,  MIN.  &  REDUCTION  CO.  v.  BOSS. 

^^_,^        1903.     Supreme  Court  OF  Colorado.     32  Colo.  27,  74  Pac.  888. 

^"^^'I         Suit  between  the  Treasury  Tunnel,  Mining  &  Reduction  Company 
\t*y^  and  George  C.  Boss.   From  the  judgment  the  company  appeals.   Re- 
f'       versed. 

Campbell,  C.  J. — This  controversy  concerns  a  strip  of  land  in- 
>»*^'"     eluded  within  two  conflicting  lode  mining  locations,  the  Maggie  A. 
hUi.^      and  the  Liverpool.    The  original  location  of  the  Liverpool  was  first 
in  order  of  time,  and  was  made  on  the  23d  day  of  May,  1887.    On 
the  1 2th  day  of  July,  1897,  an  attempt,  at  least,  was  made  to  locate 
^^         the  Maggie  A.,  and  it  is  conceded  that  in  all  respects  it  would  be  a 
j^^^_^^ valid  location  had  not  the  discovery  work  been  done  within  the  ex- 
terior  boundary  lines  of  another  mining  claim  previously  patented, 
^•n  «»» .  To  cure  this  vital  defect,  the  owners  of  the  Maggie  A.  thereafter,  and 
\         on  the  15th  of  October,  1897,  made  a  valid  discovery  of  mineral  upon 
( I J        the  same  vein  and  within  100  feet  of  the  former  discovery,  and  did 
^^  the  necessary  discovery  work  within  its  exterior  boundaries.    Up  to 

^"^  ,^.     this  time  there  was  no  conflict  of  territory  between  the  two  locations 
rfWXs-r^ ,  as  thus  made,  but  on  the  4th  day  of  OctolDcr,  1900,  the  owners  of  the 
y^-       Liverpool  location  relocated  the  same,  knowing  at  the  time  of  the  at- 
^^     tempt  of  the  Maggie  A.  owner  to  perfect  his  location  by  making  a 
I  t.^.^  good  discovery,  and  in  doing  so  the  boundaries  were  swung  from 
ut^^^their  original  position  so  as  to  include  therein  considerable  ground  not 
.  V  within  the  location  as  originally  staked  upon  the  ground,  a  portion 

y^'  of  which  is  the  ground  in  controversy  here.  The  case  was  tried  to  the 
'^*#*J}*court  without  a  jury,  and  findings  of  fact  were  made  and  judgment 
^^  'rendered  in  favor  of  the  owner  of  the  Liverpool  lode.    The  court 

f^""^*^  held  as  a  matter  of  law  that  the  Maggie  A.  was  not  a  valid  location 
"^        at  the  time  of  the  relocation  of  the  Liverpool  solely  because  its  lo- 
cator had  failed  to  comply  with  what,  in  the  judgment  of  the  court, 
*'"<~^       was  a  prerequisite  to  a  valid  location  of  a  lode  mining  claim  upon  the 
*^^^^^       public  domain  of  the  United  States,  viz.,  that,  although  a  valid  dis- 
^^      covery  of  mineral  was  made,  and  the  required  discovery  work  done, 
^^  »^  within  the  limits  of  the  Maggie  A.  location  before  the  relocation  of 
i|«»w^ ,  the  Liverpool,  yet  the  locator  of  the  former  did  not  post  at  the  point 
'   of  such  second,  and  only,  valid  discovery  on  the  surface  of  the 
^■*'''^-'^-*  ground  a  sign  or  notice,  which  it  is  said  section  3152,  Mills'  Ann.  St., 
>  requires  shall  be  done.    In  every  other  respect  the  court  considered 

;  the  Maggie  A.  a  valid  location. 
UHj^  "The  acts  of  Congress  prescribe  two,  and  only  two,  prerequisites 
to  the  vesting  in  a  competent  locator  of  the  complete  possessory  title 
*'^''*'*'^^^  to  a  lode  mining  claim.  They  are  the  discovery  upon  unappropriated 
'^>,  public  land  of  the  United  States,  within  the  limits  of  his  claim,  of  a 
^-^'       mineral-bearing  lode,  and  the  distinct  marking  of  the  boundaries  of 


POSTED    NOTICES.  157 

his  claim,  so  that  they  can  readily  be  traced."   Erwin  v.  Perego,  93 
Fed.  608,  35  C.  C.  A.  482.   The  acts  of  Congress  provide,  however, 
that  the  acquisition  of  mineral  lands  may  be  subject  to  local  laws  and 
the  rules  or  customs  of  miners,  so  far  as  the  same  are  applicable  and 
not  inconsistent  with  the  laws  of  the  United  States.    Our  General 
Assembly  has,  in  accordance  with  this  permissive  legislation,  enacted 
a  section  3150,  Mills'  Ann.  St.,  that  a  location  certificate  must  be  filed 
within  three  months  from  the  date  of  the  discovery  of  mineral,  which 
shall  contain  the  name  of  the  lode,  the  name  of  the  locator,  the  date 
of  location,  the  number  of  feet  in  length  claimed  on  each  side  of  the 
center  of  the  discovery  shaft,  and  the  general  course  of  the  lode,  as 
near  as  may  be;  and  lias  also  declared,  in  section  3152,  Id.,  that  be- 
fore the  filing  of  such  location  certificate  the  discoverer  shall  locate 
his  claim  by  (i)  sinking  a  discovery  shaft  upon  the  lode,_etc. ;  (2)  by 
posting  at  the  point  of  discovery  on  the  surface  a  plain  sign  or  notice 
containing  the  name  of  the  lode,  the  name  of  the  locator,  and  the 
date  of  discovery;   (3)   by  marking  the  surface  boundaries  of  the 
claim.   This  statute  has  not  been  assailed  as  invalid.    It  will  be  ob- 
served from  the  statement  of  facts  that  the  sole  legal  question  for 
decision  is  whether  in  this  state,  as  against  another  and  subsequent 
valid  location,  a  prior  lode  claim  is  good  in  locating  w4iich  all  the 
federal  and  state  statutory  requirements  have  been  complied  with  ex- 
cept the  mere  failure  to  place  a  discovery  notice  upon  the  ground  at 
the  point  of  the  only  valid  discovery  made  on  the  claim,_when  such 
notice  was  posted  at  the  point  of  a  former,  but  invalid,  discovery,  as 
recited  in  the  recorded  location  certificate,  and  when  the  boundaries 
remain  the  same  after  as  before  the  true  discovery. 

One  object  of  the  requirement  that  the  discoverer  shall,  before 
filing  his  location  certificate,  post  at  the  point  of  discovery  a  notice, 
is  that  those  wishing  to  make  subsequent  locations  may  thereby  be 
advise.d  of  the  ground  already  appropriated,  and  this  serves  to  hold 
his  ground  until  his  location  is  perfected  within  the  statutory  time. 
After  the  location  certificate  is  filed,  the  same  object  is  secured  in  the 
shape  of  a  permanent  record  which  the  statute  requires  shall  contain 
not  only  the  same  facts  which  must  appear  on  the  sign  or  notice 
placed  at  the  point  of  discovery  on  the  ground,  but  still  other  data 
identifving  the  location.  When  filed  in  the  proper  office,  the  certifi- 
cate takes  the  place  of  the  notice  on  the  ground,  and  after  it  is  filed 
there  is  no  necessity  for  posting  or  keeping  at  the  point  of  a  new  and 
vaUd  discovery,  if  the  first  alleged  discovery  is  void,  of  a  notice  of 
what  particular  ground  is  claimed.  The  recorded  notice  sufficiently 
describes  the  ground  claimed,  and  this  recorded  notice  contains  pre- 
cisely the  same  things  which  the  new  notice,  if  posted,  would  include. 
Subsequent  locators"  are  already  sufficiently  and  duly  notified  by  that 
record,  and  the  posting  of  a  new  notice  would  not  give  them  any  in- 
formation, which  the  record  does  not  already  furnish.    It  is  a  well- 


158  LOCATION    OF   LODE   AND   PLACER   CLAIMS. 

known  fact  that  the  boundaries  as  marked  upon  the  ground  and  the 
notices  thereupon  posted  within  a  very  short  time  often  disappear, 
and  there  is  no  requirement  in  the  law  that  they  shall  be  maintained 
or  replaced  by  the  locator  in  order  to  keep  his  location  good.  In 
Brewster  v.  Shoemaker,  28  Colo.  176,  63  Pac.  309,  53  L.  R.  A.  793, 
89  Am.  St.  Rep.  188,  it  was  held  that  the  order  of  time  in  which  the 
several  acts  of  location  were  performed  is  not  of  the  essence  of  the 
statutory  requirement,  and  that  it  is  immaterial  that  the  discovery 
was  made  subsequent  to  the  completion  of  acts  of  location,  provided 
only  all  the  necessary  acts  are  taken  before  intervening  rights  of 
third  parties  accrue;  and  it  was  there  said  that,  if  all  these  necessary 
steps  have  been  taken  before  intervening  rights  accrue,  it  would  be 
useless  and  idle  ceremony,  where  the  discovery  follows  all  the  other 
acts  of  location,  for  the  locator  again  to  locate  his  claim,  or  to  re- 
file  the  old  location  certificate,  or  to  file  a  new  one.  Where  the  lo- 
cator has  performed  all  the  several  acts  of  location  except  the  dis- 
covery of  mineral,  and  then  makes  a  subsequent  valid  discovery,  if 
no  changes  in  boundaries  occur,  there  is  no  reason  why  he  should 
put  at  the  point  of  the  valid  discovery  a  new  notice,  for  sufficient  no- 
tice is  already  of  record.  In  construing  our  statute  we  must  keep  in 
mind  the  objects  of  the  different  statutory  requirements,  and  when 
there  has  been  substantial  compliance  therewith  the  statute  is  satis- 
fied. In  this  case,  before  the  Liverpool  was  relocated,  notice  by  the 
recorded  certificate  had  been  given  to  the  world  of  the  segregation  of 
the  territory  which  the  owners  of  the  Maggie  A.  claimed ;  hence  no 
rights  of  third  parties  would  be  protected  or  safeguarded  by  requir- 
ing the  locators  again  to  post  at  the  point  of  a  subsequent  discovery 
a  location  stake  or  notice,  for,  if  so  placed,  it  would  have  on  it  only 
what  the  permanent  record  shows.  We  limit  our  decision  to  the 
facts  before  us.  What  may  be  the  rule  if  the  facts  are  essentially 
different  from  those  in  the  case  at  bar,  we  are  not  called  upon  to 
determine. 

The  judgment  of  the  district  court  being  in  conflict  with  this  con- 
clusion, it  is  reversed,  and  the  cause  remanded,  with  instructions  to 
enter  judgment  in  favor  of  the  appellant  with  respect  to  the  Maggie 
A,  lode.  Reversed. ^- 

"^  See  also  McAiillen  v.  Ferrum  Min.  Co.,  32  Colo.  38,  74  Pac.  461,  105  Am. 
St.  54.  On  the  effect  of  a  failure  to  post  notices,  see  Morrison's  Mining 
Rights,  14  ed.,  46. 


J    ^  POSTfD   NOTICES.  .  •' 


d'H 


BRAMLETT  v.  FLICK.  U  r^iJ-v*^  Lt  ^^    S^ 

(See  post,  p.  228,  for  a  report  of  the  case.)  Y^^"*^"^**"^    Jf/u 

BERGQUIST  v.  WEST  VIRGINIA-WYOMING  COPPER  CO.  "KAU^ 

(See  post,  p.  240,  for  a  report  of  the  case.)         *  «,      ^^.^  TT     ^ 

GIRD  ET  AL.  V.  CALIFORNIA  OIL  CO.        Urrt  V^cA^  ^ 

1804.     Circuit  Court,  S.  D.  California.     60  Fed.  531.    \   .     . 

Action  by  Richard  Gird  and  J.  C.  Udall  against  the  CaHfornia.ftji  <\fiC- 
Oil  Company  to  determine  conflicting  claims  to  certain  mining  loca-  /j  >twA  4 

tions.  ^.^,  s\ 

Ross,  District  Judge.^'* — The  record  in  this  case  is  a  very  volumi-  rtv**-*' 
nous  one,  and  has  been  carefully  examined  and  considered.  The  tfX-%^  *y. 
premises  in  controversy  are  oil-bearing  lands,  the  government  title  f^>^^  U 
to  which,  under  existing  laws,  can  alone  be  acquired  pursuant  to  g^^ 
the  provisions  of  the  mining  laws  relating  to  placer  claims.  The  ^^^^ 
defendant,  California  Oil  Company,  claiming  to  be  the  owner  of  a  tii^Wt 
placer  mining  location  called  the  "Razzle  Dazzle,"  made  application  .  _y^/, 
to  the  register  and  receiver  of  the  United  States  land  office  at  Los  |/''-Ti* 
Angeles,  "in  which  district  the  land  is  situated,  for  a  patent,  against  ^  ^ 
theissuance  of  which  the  plaintiffs,  Richard  Gird  and  J.  C.  Udall,  .O^^^^^j 
filed  a  protest  in  writing,  claiming  that  17  5-10  acres  of  the  Razzle  r'-'*'*'^*^ 
Dazzle  location  are  embraced  by  two  previous  mining  locations, ')^,_^^  U 
called,  respectively,  the  "Whale  Oil"  and  "Intervener  No.  3,"  0^^-^^,,^^.^ 
which  they  are  the  owners;  and  thereupon,  within  the  time  pre-  v 

scribed  by  section  2326  of  the  Revised  Statutes,  and  pursuant  to  its  ll' WaAvA-" 
provisions,  the  contestants  commenced  the  present  action  in  the  su-^\J£,^JW.^ 
perior  court  of  Ventura  county,  of  this  state,  to  determine  the  con-  1^^^^  >4- 
flicting  claims  of  the  respective  parties  to  the  disputed  premises,  V^V^ 
from  which  court  the  action  was,  on  motion  of  the  defendants,  trans-  k't,>-*^ti<\ 
ferred  to  this  court.     *     *     =i^  ^  ^^^-^ 

The  ground  in  controversy  is  situate  in  the  county  of  Ventura,  and 
within  the  Little  Sespe  petroleum  mining  district.     *     *     *  V\.»JtLfc*« 

It  will  be  seen  that  by  the  first  local  rule  respecting  the  location  of  fXj^  Vv, 
claims  the  locator  is  required  to  post  a  notice  on  the  claim,  and  to  ^1  ^_,^ 
show  it.  together  with  the  corners  of  the  claim,  to  a  witness,  who  is  PVf'^ 
required  to  be  a  claim  owner  within  the  district,  who  must  sign  the  \  r  t/ii 
notice  as  a  witness,  a  copy  of  which  is  required  to  be  given  to  the  ^x»  ^^ 
recorder  for  recordation.     *     *     *  ^     ^  ^ 

We  see,  then,  that  one  of  the  essentials  to  a  valid  location  Avithinjt.^^  yl^  ( 
the  Little  Sespe  petroleum  mining  district  [according  to  the  district  ^  ^ 
rules]  is  the  posting  by  the  locator  of  a  notice  of  location  on  the  T^        ^ 

"  Parts  of  the  opinion  are  omitted,    i  .       i      N 

>v^Vhan  >  {^/^>JJL  aat-^>^  nUu^    e^j^  t; {^^sj^Jm  c>%^  K. 


^^^^     "N         l6(J  LOCATION    OF   LODE    AND    PLACER    CLAIMS.  J 


*''***^  claim,  signed  also  by  a  witness  who  is  himself  an  owner  of  a  claim 

|A-i    !  within  the  district,  and  that  such  notice  be  recorded  with  the  re- 
J  ^   ^^..corder  of  the  district  within  30  days  after  the  making  of  the  location ; 

*^     "^  which  record  shall  contain  the  name  or  names  of  the  locators,  the 

>  f'^'^*^  date  of  the  location,  and  such  a  description  of  the  claim  or  claims 

*j'\„^ji^  located,  by  reference  to  some  natural  object  or  permanent  monu- 

y  ment,  as  will  identify  the  claim.     *     *     * 

Jy-^^  It  remains  to  consider  the  Razzle  Dazzle  location,  which  was  made 

|^C-*-M,f  December  6,  1890,  and  under  and  in  pursuance  of  which  the  defend- 

v^  ant  asserts  the  right  to  a  patent  from  the  government.   Mason  Brad- 

*^  ■  field,  George  J.  Henley,  and  John  Thompson  were  the  locators  of  this 

t«r'*-A.'-  claim.  It  was  witnessed  by  J.  G.  Barker.  The  location  notice    *    *    * 

J  was  placed  in  a  small  tin  can,  and  the  can  placed  by  the  locators  on 

1^  a  little  shelf  in  a  rock  mound,  more  than  two  feet  high,  erected  by 

^T-V  ,  Wi^rn  near  a  tree  on  the  claim,  and  a  copy  of  it  filed  for  record  with 

(ftxJJ  ^  the  recorder  of  the  district  December  24,  1890.   The  evidence  shows 

1^      '  that  the  corners  of  the  claim  were  marked  by  large  rock  mounds,  con- 

IX^  siderably  more  than  two  feet  in  height,  and  near  the  northeast  corner 

j^*  g_^  a  diagram  was  cut  in  the  rock,  and  measurements  given  by  which 

Jt  1^"  ^^^  ^^^^"^  could  be  easily  identified.    The  evidence,  I  think,  clearly 

H  (^r^"  shows  that  the  boundaries  of  the  claim  were  so  marked  upon  the 

U^^'fls.  ground  as  that  they  could  be  readily  traced.    It  is  said  for  the  plain- 

/V>4'U-V  ^^^^  *^^^^  *^^^^  location  did  not  comply  with  the  local  rules  requiring 

^^      j^  the  notice  of  location  to  be  posted  on  the  claim ;  that  putting  it  in  the 

^"^  tin  can,  and  the  can  in  the  pile  of  rocks,  was  hiding,  and  not  posting, 

.  (a*-^  it.   I  do  not  think  so.  As  has  been  already  said,  one  of  the  main  pur- 

^^  poses  of  the  rule  requiring  the  posting  of  the  notice  on  the  claim  is 
for  the  guidance  and  protection  of  other  miners  seeking  to  locate 

*v«^  claims.    And  it  cannot  be  doubted  that  a  miner  traversing  a  mining 

y.  region  in  search  of  mining  ground  who  should  see  such  a  mound  of 

(N_  A  rocks  as  usually  marks  a  mining  claim,  with  a  tin  can  carefully  placed 

"J  in  it,  and  who  was  seeking  in  good  faith  to  inform  himself,  would 

fc_^  ^  2  f^il  ^o  examine  the  contents  of  the  can.    The  very  fact  that  such  a 

-^  ^,  can  was  put  in  such  a  place  would  indicate  to  the  miner  that  it  was 

^^(f     S  P'-^t  there  for  a  purpose,  and  that  purpose  the  protection  of  a  notice 

,A|  ^)o  of  information  from  destruction  by  the  rains  or  from  other  causes. 

'  The  objection  made,  in  my  opinion,  is  without  merit.     *     *     *^^ 

Vm.*H  •-     It  is  further  urged  on  the  part  of  the  plaintiffs  that,  independent  of 

Uj%^  the  Whale  Oil  location,  the  ground  covered  by  the  Razzle  Dazzle  lo- 

Iw^f^Vr  "  "Where  only  a  memorandum   notice   is   required,   the    [state]    statute   or 

•V    "CZ  Trfiiner's]  rule  generally  requires  'a  plain  sign  or  notice,'  but  there  has  never 

'     Y'  been  any  uniformity  among  prospectors  in  the  details  of  the  notice,  or  in  the 

f(j^Ji^ ^  mode  of  posting  it.     It  may  be  substantially  complied  with  by  writing  on  a 

.>  blazed  tree  or  on  a  board  nailed  at  discovery,  or  by  legible  carving,  or  by  any 


\   Wv*  "   other  rude  but  honest  form  of  notice,  so  that  it  be  intelligible  and  open  to 
^  «.  observation;  but  the  loose  practice  of  writing  on  a  chip  or  stick  thrown  into 

T^Kv'Mi^the  discovery  hole  is  an  attempt  to  evade  or  abuse  the  fair  requirement  of  the 
•     If  law."    Morrison's  Mining  Rights,  14  ed.,  44.  . 


POSTED    NOTICES.  l6l  ^>v^c-^ 

cation  was  not  at  the  time  open  to  location  by  Bradfield,  Henley,  and  rj^jj   L 
Thompson,  because  it  was  then  in  the  actual  physical  possession  of  V^v 
David  H.  Irland,  who  was  then,  by  his  employes,  engaged  in  put-  r^VTTW.'V" 
ting  down  a  well  upon  it,  and  that  Bradfield  and  Henley  were  ts-fv^  ^iXji 
topped  from  claiming  the  ground ;  the  latter  for  the  reason,  it  is  ujr^  ^ 
said,  that  he  was  in  the  employ  of  Irland,  and  the  former  upon  the       y^     , 
ground  that  Irland  was  holding  under  him.   But  these  positions  are  *^*'^'^>>''*-*-| 
without  support  in  the  record.   The  evidence,  I  think,  shows  that  Ir-  '2\j-xiJ^Ji^ 
land  himself  was  in  the  employ  of  the  defendant  oil  company,  and (j^ft^^j^ 
that  the  work  that  he  was  doing  on  the  ground  in  question  at  theT^^^^ 
time  of  its  location  was  the  defendant's  work,  and  that  the  location  '^^V^-ax^ 
made  by  Bradfield,  Henley,  and  Thompson  was  in  reality  made  for  W\i^n^\ 
the  defendant  company,  which,  through  mesne  conveyances  made  |  ^^   *' 
almost  immediately  afterwards,  acquired  all  of  the  rights  therein  of  ^^^« 
Bradfield,  Henley,  and  Thompson.    Irland  never  held  under  Brad-{j^  |  ^^}\ 
field  any  interest  in  the  ground  covered  by  the  Razzle  Dazzle  loca-  ■       ^^ 
tion.     *     *     *     Ij-  appears,  however,  from  the  notice  of  location  that  ^-^■^'^■^^^y^ 
the  Razzle  Dazzle  claim  contains  48.90  acres  of  land.   It  is  declared  ^(jsk<S^c 
by  the  act  of  i\Iay  10,  1872,  c.  152  (17  Stat.  91),  and  the  provision  ^,  t^ 
was  afterwards  carried  into  the  Revised  Statutes,  that  no  placer  lo-  JvJ^V 
cation  "shall  include  more  than  twenty  acres  for  each  individual  V^'J-<r^< 
claimant."    Sec.  2331,  Rev.  St.    If  Irland  was  in  the  actual  posses-  tX^<-f  <^ 
sion,  and  working  the  ground  for  himself,  and  Bradfield,  Henley,  and  <CoNn>*»n 
Thompson  were  acting  for  themselves  in  making  the  location  of  the  ^j^  .    / 
Razzle  Dazzle  on  December  6,  1890,  the  location  so  made  by  them  ^    ^^ 
would  be  void,  because,  in  that  event,  the  location  would  have  been  ^^"  ^^^- 
made  upon  ground,  not  vacant  and  open  to  location,  but  upon  ground'VvV-x  h^  ^ 
in  the  actual  and  adverse  occupancy  of  another.   But,  as  already  ob-  f^i^^^^c^ 
served,  I  think  the  evidence  shows  that  Irland,  Bradfield,  Henley,       --^  l> 
and  Thompson  were,  in  truth,  all  acting  for  the  defendant  company  ^^^-^-^^  ^ 
at  the  time  of  the  location  of  the  Razzle  Dazzle  claim,  and  therefore./^  9-^c,  / 
that  the  location  should  be  considered  and  treated,  not  as  made  ^Y  Ih  y^  yzi- 
the  three  individuals,  Bradfield,  Henley,  and  Thompson,  but  as  made  '') 
for  and  in  the  interest  of  the  "defendant  company,  and  must,  under  Z.  UZ-sa. 
the  provision  cited,  be  limited  in  amount  to  20  acres  of  land.    That  -7^  (^ 
defendant  has  expended  upon  the  ground  in  question,  annually  since  \^^  \^ 
its  location,  much  more  than  the  amount  required  by  the  statute,  ^^^__,^-^ 
and  much  more  than  the  $500  required  by  statute  to  entitle  the  apph-     TpC" 
cant  to  apply  for  and  obtain  a  patent,  clearly  appears  from  the  evi-    K>^V  ' 
dence.   For  the  reasons  given,  I  am  of  the  opinion  that  the  right  of  <Sy^o  (^ 
possession  of  the  disputed  ground,  to  the  extent  of  20  acres,  is  in  ,,<yj^^,,^<^ 
the  defendant,  and  that  the  plaintiffs  have  no  right  thereto.    There  ^^^^ 
will  be  judgment  in  accordance  with  these  views,  with  costs  to  ^^''^l^^^^ 
defendant. 


^is^->y^^  <- 


11— Mining  Law     .  U.  ^  ..  ««^       i  ^^  I 


i^W^r^w, 


,     162      V  LOCATIOl/  or   LODE   AND   PLACER    CLAIMS.        ^  B 

ju^  .    ^nt^j^  SANDERS  ET  AL.  V.  NOBLE  et  al. 

o^^j  1899.     Supreme  Court  of  Montana.     22  Mont,  no,  55  Pac.  1037. 

p^^****^  Hunt,  J.  ^® — Plaintiffs  (appellants  here)  sued  the  defendants 
/vt<^  .  (who  are  the  respondents)  to  enjoin  certain  trespasses  upon  the 
4t,^y,^     Never  Sweat  lode  claim,  and  to  enjoin  them  from  asserting  title  to 

.  ^j?\  any  portion  of  said  claim,  the  ownership  and  possession  of  which 
^"""^  plaintiff's  allege  to  be  in  themselves.  Defendants  denied  the  owner- 
^^•'■~        ship  and  possession  of  plaintiffs,  and  the  validity  of  the  Never  Sweat 

Ln^       location,  set  up  their  own  title  to  the  Yukon  lode  claim,  and  prayed 

»  that  the  same  be  quieted  in  themselves.    The  trial  was  had  before  a 

%  i^'t^f  j^^y.'  ^"^  testimony  was  heard  on  both  sides.    At  the  conclusion  of 

the  plaintiffs'  rebuttal  testimony,  the  defendants  moved  the  court  to 

30  P     instruct  the  jury  to  find  in  defendants'  favor.    The  court  granted  the 

ym^\/  motion.  Verdict  and  judgment  were  rendered  in  defendants'  favor, 
^"^^  Plaintiffs  appeal  from  the  judgment  and  an  order  overruling  a  mo- 
i    A*  "  tion  for  a  new  trial. 

The  ground  of  the  defendants'  motion  to  direct  a  verdict  was  that 

the  plaintiffs  had  failed  to  make  any  proof  of  a  compliance  with  the 

f-  (  .  -'■  '■  '  statute  in  respect  to  disclosing  a  well-defined  crevice  at  the  point  of 

5    J^       discovery  of  the  Never  Sweat  claim  for  the  depth  of  10  feet.    The 

*  ^  ^  court,  however,  did  not  sustain  the  motion  upon  the  ground  included 
"y^c^^       therein,  but  held  that  defendants  were  entitled  to  a  verdict  because 

jji  «  the  plaintiffs  were  bound  strictly  by  their  location  notice,  and  that, 
yHHil  t^the  plaintiffs  having  infringed  upon  the  defendants'  claim,  they  must 

TO  ^'  be  held  to  the  lines  of  their  location  notice,  and  could  not  "get  off 

Xirt^  onto  some  adjoining  claimant's  claim,"  and  that,  if  they  made  a  mis- 

'  ^^^  take,  the  prejudice  lies  at  their  door,  and  not  at  the  door  of  the  other 

iy>^  parties  upon  whose  rights  they  have  infringed.    To  make  the  ruling 

L^  of  the  court  intelligible,  and  state  the  case  on  its  merits,  it  is  neces- 

K      '  1  sary  to  briefly  recite  what  the  evidence  tended  to  show : 

,Jl^    /  In  August,    1897,  W.  H.    Sanders,   Henry  Knight,   and  J.   W. 

.     .  Knight,  three  of  the  plaintiffs,  were  working  and  prospecting  in  the 

*  »  **1  vicinity  of  the  ground  in  controversy.    They  were  co-owners  in  the 

jh  Copper  Crown  lode  claim,  which  lies  in  a  southwesterly  direction, 
'^  •S'Hr  and  adjacent  to  the  Never  Sweat.  In  a  northeasterly  direction  from 
■^  I  the  .Copper  Crown  there  was  an  unappropriated  triangular  tract,  ap- 
^</^       proximately  600  by  900  feet.     Plaintiffs,  after  endeavoring  to  trace 

vw^'  f[Q2^^  rock,  finally  succeeded,  and  followed  the  same  up  the  hillside, 
T^/^nrw  where  they  commenced  to  dig,  and  found  what  appears  to  be  the 
'  apex  of  the  Never  Sweat  lode.    On  August  7th  they  made  their  dis- 

covery. They  dug  down  about  2  feet,  and  on  the  surface  cut  a  hole 
^V-K-V^      about  2}^  by  3  feet,  finding  in  the  hole  what  one  of  the  plaintiffs 

V  UU    ^^y^  ^^^^^  ^  ledge  of  quartz,  in  a  northerly  and  southerly  direction, 

ik\JA^    "Parts  of  the, opinion  are  omitted.-—    .      .^     #*    ^Jmt  ^  "^ 


<^\ 


as  near  as  he  could  tell.    This  ledge  was  traced  by  the  float  on  the  14**^^ 
surface,  but  there  was  no  outcropping  on  either  side  of  the  hole.  :^<kX5  ' 
On  August  7th,  Sanders  and  Knight,  for  themselves  and  the  other  c*J.jd 
plaintiffs,  posted  a  notice  of  location  at  the  point  of  discovery.    It  C-yk^JUj 
was  in  the  usual  form  of  location  notices.    It  named  the  quartz  claim  j;Uwk^  ^ 
as  the  "Never  Sweat,"  and  continued  as  follows :    "Extending  ^^0"§>^Jil'^ 
said  vein  or  lode  five  hundred  feet  in  a  southerly  direction  and  o"^T  V^^JJ 
thousand  feet  in  a  northerly  direction,  from  the  center  of  the  dis-1  O  '*^ 
covery  shaft   (at  which  shaft  this  notice  and  statement  is  posted),  ^tX-^r . 
and  three  hundred  feet  on  each  side  from  the  middle  or  center  of  ^^  ^ 
said  lode  vein  at  the  surface ;  comprising  in  all  fifteen  hundred  feet .      ^^uh 
in  length  along  said  vein  or  lode,  and  six  hundred  feet  in  width,"  ^  [j  T| 
Plaintiffs  testified  that,  when  they  made  this  discovery,  they  intended  ft-,<)4Ly 
to  take  the  fraction  above  referred  to,  and  supposed  that  their  claim  /j-^, 
was  running  pretty  near  north  and  south.    After  putting  up  this  no-  ^^-^^ 
tice  of  location  of  the  Never  Sweat,  plaintiffs  left  that  vicinity  en-  LAfV^j 
tirely,  to  fulfill  a  contract  elsewhere,  and  were  gone  about  30  days,  ^j^^ 
During  their  absence,  the  defendants,   in  August,   went  upon  the  ^     ^" 
ground  involved  in  this  controversy,  and  located  the  Yukon  mining  |3 1-^  t^ 
claim.     One  of  the  locators  testified  that  he  found  some  rich  ^o^tf^^^^^^j 
upon  August  28th ;  that  they  saw  the  notice  which  was  posted  at  the  ^        ^ 
Never  Sweat,  and  read  it.    Desirous  of  avoiding  the  locating  of  any  t-^c^u^^ 
ground  unless  it  was  vacant,  the  defendants  started  from  the  loca-  II  (^iX, 
tion  of  the  Never  Sweat,  and  went  due  north,  determining  where  ^   ^ 
due  north  was  by  the  shadow  of  the  sun  about  noon  of  the  day  they  »y^^  ^ 
made  their  location.    After  measuring  due  north  about  350  feet,  they  Cv^  C 
measured  300  feet  down  the  hill,  and  concluded  that  they  had  about      / 
reached  the  side  line  of  the  Never  Sweat.    Then  they  measured  5o«^^-<-<^ 
feet  more,  to  allow  the  Never  Sweat  locators  room  "to  swing  their  ^-^jj,,,,^ 
claim  a  little ;  we  thought  50  feet  was  enough."    Then  they  meas-  ^^. 
ured  150  feet  from  their  discovery,  and  located  the  Yukon  _  claim  *^-^^  ^ 
easterly  and  westerly.     Defendants  ran  a  tunnel  to  the  vein  disclos-  \jj%^ 
ing  the  same  at  a  depth  of  10  feet  or  more.    They  explored  and  con-  . 
eluded  their  staking  within  a  period  of  30  days  after  the  posting  of  U3LcM.« 
the  Yukon  notice.     They  filed  a  declaratory   statement  with  the  ^^jj^  ^ 
county  recorder  of  Madison  county  within  90  days,  but  the  date  of  (P"^    ^ 
filing'such  statement  was  subsequent  to  the  filing  of  the  plaintiffs' tc^cj^ 
declaratory  statement.     When  the  plaintiffs  got  back  to  the  Never  ^,,^^^ 
Sweat,   the   defendants   had   completed   the   work  of   locating  the       . 
Yukon,  and  had  gone.     Plaintift"s  sunk  a  10- foot  shaft,  established  S'J^^itii' 
corner  monuments,  and  recorded  their  declaratory  statement  of  their  ov-v^'  t 
location  of  the  Never  Sweat,  all  within  90  days  after  the  posting  of 
their  notice  as  aforesaid.     When  they  staked  their  claim,  they  lo-  ^^/^ 
cated  parallel  to  the  Copper  Crown,  and  included  the  discovery  cut  IroAy^ 
of  the  Yukon,  which  was  700  feet  from  the  discovery  point  of  the  ^^j^^' 
Never  Sweat.    The  plaintiffs  and  the  defendants  had  some  conver-  ^jj^n^ 


;  r  —^^1641  LOCATION    OF    LODE   AND   PLACER   CLMMS. 


sation  in  relation  to  the  conflicts,  but  it  never  resulted  in  any  agree- 
ment between  them.  Plaintiffs  also  commenced  to  run  a  tunnel 
some  27  feet  north  of  the  mouth  of  the  defendants'  tunnel,  and  pros- 
ecuted this  work  until  they  tapped  the  vein  claimed  by  defendants 
as  the  Yukon,  about  12  feet  at  the  head  of  the  defendants'  workings. 
This  work  was  done  after  they  had  staked  their  claim  so  as  to  in- 
clude the  point  referred  to.  Then  plaintiffs  notified  the  defendants 
to  keep  off  the  ground.  The  defendants  refused,  and  both  plaintiffs 
and  defendants  continued  to  work  until  suit  w^as  brought.  The  ac- 
companying diagram  illustrates  the  ground  in  question.     *     *     * 


\^ 


1^ 


S^    Ctt3>^ 


Taking  up  the  [federal  and  state]  statutes  quoted,  it  will  be  seen 
that,  to  initiate  and  complete  a  mining  location,  five  acts  must  be 
performed:  (i)  There  must  be  a  discovery;  (2)  there  must  be  a 
definition  of  boundaries,  as  required  by  section  361 1 ;  (3)  there  must 
be  a  posting  of  notice  at  the  point  of  discovery;  (4)  there  must  be 
development  within  90  days  from  the  date  of  posting  the  required 
notice;  (5)  there  must  be  a  declaratory  statement  filed  in  the  office 
of  the  county  clerk.  The  first  essential  was  performed  so  far  as  the 
case  here  presents  itself ;  and,  it  having  been  complied  with,  by  im- 
^'-^   mediately  thereafter  placing  at  the  point  of  discovery  a  notice  as  re- 


1 


viKjxr;^  ^^^^-^^sxEhJoTicts*^  ^S^-  "'^^'--^  Sgf-'-t^ 

quired  by  statute,  we  believe  that,  until  the  expiration  of  90  days  fl 
thereafter,  the  plaintiffs'  claim  was  valid  and  subsisting.  All  per-  *\^, 
sons  were  warned  of  the  claim  of  the  Never  Sweat  lode,  and,  by  the  < 
law,  prospectors  or  others  going  within  the  limits  included  within 
the  notice,  to  locate  another  claim,  were  trespassers.  Coming  after  ^^ 
the  discovery  made,  it  was  an  appropriation  of  the  land  specified  . 
therein  ;  and  the  two  acts — discovery  and  posting  the  notice — consti-  ^**\|(^ 
tuted  the  origin  of  a  good  title  to  the  Never  Sweat  mining  claim.  ,  ^-^^^ 
The  condition  of  a  continued  ownership  was  development  and  a  defi-  *'V'^ 
nition  of  boundaries,  by  marking  a  tree  or  rock  in  place,  or  by  setting  ^  ^ 
a  post  or  stone  at  each  corner  or  angle  of  the  claim.     *     *     * 

The  decisions  of  the  supreme  court  of  the  territory  and  of  the  M^  J 
state  rendered  prior  to  the  enactment  of  the  statutes  which  require  l\ 
development  work  before  boundaries  are  to  be  defined  cannot  con-  H^-i 
trol  the  present  condition  of  the  law.  It  is  true,  we  think,  that  one 
of  the  objects  in  requiring  a  location  to  be  marked  upon  the  ground 
is  to  fix  the  claim,  and  to  prevent  floating  or  swinging,  so  that  those 
who  are  in  good  faith  looking  for  unoccupied  ground  may  know  ex- 
actly what  has  been  appropriated ;  and  we  thoroughly  agree  with  the 
principle  announced  in  Hauswirth  v.  Butcher,  4  Mont.  299,  i  Pac. 
714,  that  the  provisions  of  the  law  designed  for  the  attainment  of 
this  object  are  very  important,  and  ought  not  to  be  frittered  away 
by  construction;  but,  on  the  other  hand,  it  is  of  equal  importance 
that  the  miner  have  ample  opportunity  to  perfect  his  mining  loca- 
tion, in  order  that  he  may  be  protected  in  the  full  enjoyment  of  the 
rights  accorded  to  him  by  the  federal  statutes.  And  it  was  for  the 
purpose  of  affording  the  full  enjoyment  of  these  rights  that  the  state 
statutes  were  passed,  merely  postponing  the  necessity  for  definition 
by  marking  the  boundaries  of  his  claim  until  he  may  have  full  op- 
portunity to  ascertain  the  strike  or  course  of  the  vein  or  lode  which 
he  has  discovered.  The  law  has  said  that  he  must  do  all  this  within 
90  days.  Thereafter  there  can  be  no  floating  or  swinging.  But  up 
to  the  expiration  of  that  time,  under  the  decisions  quoted,  we  are 
forced  to  conclude  that,  if  in  good  faith,  he  may  use  his  discovery 
post  as  a  pivot,  and  move  his  lines,  at  least  in  the  general  course  of 
his  vein  given  in  his  notice,  so  as  to  secure  the  full  benefit  of  his 
discovery. 

The  distinction  between  the  notice  of  discovery  or  notice  of  loca- 
tion required  to  be  posted  on  the  claim  by  section  3610,  and  the 
declaratory  statement  required  to  be  filed  for  record  by  section 
3612,  is  a  substantial  one,  easily  understood  when  the  purpose  of 
each  is  kept  in  mind.  The  notice  of  discovery  should  be,  and  usually 
is,  posted  immediately  at  the  discovery  hole,  and  often  before  the 
discoverer  can  possibly  survey  or  even  measure  his  ground.  It  is 
often  done  before  even  specific  bearings  are  known.  It  is  a  simple 
announcement,  and  meant  only  to  be  a  simple  notice  of  a  discovery, 


C^^^jr^s^  '^  ^^^^''-^'^.  i  t^^^ 


l66  LOCATION    OF   LODE   AND   PLACER    CLAIMS. 

and  of  an  intention  to  claim  the  vein  discovered,  and,  by  posting  it, 
the  discoverer  finds  an  easy  and  quick  way  of  announcing  his  claim. 
Afterwards,  though,  when  an  opportunity  is  had  to  follow  the  vein 
on  its  strike,  then  the  boundaries  must  be  marked,  and  the  claim 
must  be  described  by  reference  to  natural  objects  or  permanent 
monuments.  Then  it  is,  too,  but  not  before,  that  the  evidence  of  the 
location  must  be  preserved,  by  recording  the  declaratory  statement 
containing  such  description  of  the  location  with  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the  claim. 
The  notice  of  location  is  a  protection  to  the  discoverer  during  the 
process  of  location.  "The  record  of  a  mining  claim,"  says  Judge 
Ross  in  Gird  v.  Oil  Co.,  60  Fed.  531,  "when  one  is  required,  is  in- 
tended to  contain  a  more  exact  and  specific  description  of  the  claim 
than  the  notice  posted  upon  it."     Gleeson  v.  Mining  Co.,  13  Nev. 

465- 

But  respondents'  counsel  say,  even  if  this  be  the  law  generally, 

yet  in  this  case,  plaintiffs  having  described  their  location  by  their 
notice  as  extending  along  the  Never  Sweat  lode  claim  in  a  southerly 
and  northerly  direction  from  the  center  of  the  discovery  shaft,  they 
cannot  now  object  to  the  acts  of  defendants  in  running  the  lines  of 
the  Never  Sweat  due  north  and  due  south,  so  as  to  allow  defendants 
to  perfect  a  location  of  the  Yukon  claim  without  the  lines  of  the 
Never  Sweat  when  so  run  due  north  and  due  south.  This  argu- 
ment, of  course,  involves  the  proposition  that  the  statute  which  re- 
quires a  notice  to  be  posted  at  the  point  of  discovery,  in  which  must 
be  contained  the  general  course  of  the  vein  or  lode  "as  near  as  may 
be,"  demands  an  accurate  description  of  the  course  of  the  vein  by 
the  points  of  the  compass.  We  cannot  adopt  such  a  construction  of 
the  law  without  frittering  away  the  underlying  purpose  of  the  stat- 
ute to  give  to  the  discoverer  90  days  in  which  to  define  the  bounda- 
ries of  his  claim ;  for,  if  he  must  accurately  state  the  general  course 
of  the  vein  in  his  notice  posted  at  the  point  of  his  discovery,  and  at 
the  time  thereof,  and  is  to  be  held  to  such  course  literally,  the  devel- 
opment work  that  he  is  required  to  do  to  demonstrate  whether  he 
has  a  claim  worth  further  exploitation  would  be  of  no  avail  to  him 
if  it  should  demonstrate  that  the  course  of  his  vein  varies  even  to  the 
slightest  extent  from  the  general  course  given  in  his  discovery  no- 
tice. The  statute  requires  only  that  he  give  the  general  course  "as 
near  as  may  be" ;  and  where,  as  in  this  case,  the  course  is  given  as 
southerly  and  northerly,  and  it  subsequently  appears  by  the  survey- 
or's plats  that  the  course  of  the  vein  is  not  due  north  and  south,  in 
the  absence  of  proof  of  a  lack  of  good  faith  we  hold  that  such  a  no- 
tice is  sufficient  and  valid. 

In  Book  V.  Mining  Co.,  58  Fed.  106,  a  claim  was  described  as  be- 
ginning at  the  southwest  boundary  of  the  West  Justice  and  lying 
north  of  the  Ennis  mine.     It  was  argued  in  the  circuit  court  of  the 


POSTED    NOTICES.  167 

United  States  that  the  locations  were  invahd,  because  notices  were 
posted  that  did  not  correctly  describe  the  lode.  Judge  Hawley  said : 
"In  construing  notices  of  this  character,  where,  under  the  mining 
rules  and  local  regulations  or  state  laws,  such  notices  are  required 
to  be  posted  upon  the  ground,  the  courts  are  naturally  inclined  to 
be  exceedingly  liberal  in  their  construction.  Such  notices  are  often 
drawn  by  practical  miners,  unaccustomed  to  legal  forms  and  tech- 
nical phraseology ;  hence  the  language  used  in  the  notices  is  often 
subject  to  more  or  less  criticism  by  counsel  learned  in  the  law,  and 
engaged  in  preparing  documents  in  legal  shape  and  form.  Then, 
again,  locations  are  often  made  without  any  accurate  knowledge  of 
the  true  course  and  directions  which  a  compass  would  readily  give, 
and  mistakes  in  the  notice  as  to  the  direction  and  course  of  the 
ground  located  often  occur.  But  such  mistakes  do  not  invalidate 
the  location.  Positive  exactness  in  such  matters  should  never  be 
required.  It  is  the  marking  of  the  location  by  posts  and  monuments 
that  determines  the  particular  ground  located."  In  that  same  case 
the  location  notice  described  the  claim  as  extending  1,500  feet  in  a 
northerly  direction.  That  was  a  mistake  so  far  as  the  direction  was 
concerned,  as  true  north  would  have  carried  the  line  over  and  across 
another  mine,  instead  of  along  the  proper  line,  but  the  court  said : 
"The  word  'northerly,'  under  such  circumstances,  conditions,  and 
surroundings,  should  not  be  interpreted  as  meaning  due  north.  It 
includes  and  may  mean  any  meridian  line  or  course  between  a  due 
north  and  northwest,  and  is  defined  and  made  certain  by  the  posting 
of  the  stakes  or  the  building  of  the  monuments  at  the  corners  of  the 
locations,  or  along  the  lines  thereof.  Such  stakes  and  monuments 
would  control  the  courses  specified  in  the  notice."  West  Granite 
Mountain  Mm.  Co.  v.  Granite  Mountain  :Min.  Co.,  7  ]\Iont.  356,  17 
Pac.  547 :  Gamer  v.  Glenn,  8  Mont.  379,  20  Pac.  654. 

Th'e  respondents'  counsel,  in  their  brief,  tell  us  that  the  court  was 
impressed  with  the  bad  faith  of  these  plaintiffs ;  but  there  is  nothing 
in  the  record  which  informs  us  that  the  court  considered  that  ques- 
tion at  all,  and  we  cannot  presume  that  they  acted  in  other  than  good 
faith. 

To  extend  the  discussion  of  these  questions  would_  be  useless. 
*  *  *  If  the  locator  postpones  marking  his  boundaries,  he  must 
be  protected  until  the  statutory  time  given  him  in  which  to  do  the 
acts  required  has  elapsed ;  and  until  he  has  done  what  the  statutes 
require,  if  his  notice  is  valid,  and  he  has  a  discovery,  all  persons  pro- 
ceeding to  enter  within  the  limits  of  the  ground  located  do  so  at 
their  peril. 

If  the  question  which  we  have  discussed  were  res  mtegra,  we 
should  be  disposed  to  take  a  view  of  the  federal  statute  (section 
2324)  differing  from  the  rule  of  Erhardt  v.  Boaro,  supra,  and  to 
agree     with     the     California     and     Oregon     cases     cited,     which 


l68  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

interpret  the  law  as  requiring  an  immediate  marking-  of 
the  location  on  the  ground,  so  that  the  boundaries  can  be  readily 
traced,  or  that  a  possessio  pedis  be  had  until  they  can  be  so  marked 
within  a  reasonable  time.  There  is  a  great  deal  to  be  said  in  support 
of  the  argument  that  congress  never  meant  to  allow  the  discoverer 
to  stop  his  work,  leave  his  claim,  and  postpone  marking  his  bounda- 
ries for  any  period  of  time.  The  effect  of  the  present  construction 
is  to  give  advantages  to  the  discoverer  beyond  what  the  statute 
seems  to  fairly  contemplate ;  and  yet,  if  the  right  to  postpone  the 
marking  of  the  boundaries  for  90  days  exists,  there  is  no  escape 
from  the  conclusion  that  the  right  to  swing  in  good  faith  during  that 
time  goes  with  it.  This  is  so  because  the  reason  for  allowing  the 
right  to  postpone  is  to  definitely  ascertain  the  strike,  so  that  the  dis- 
coverer may  secure  the  benefit  of  his  location  before  marking. 
Therefore,  where  the  discoverer  gives,  as  he  must  under  the  state 
statute,  the  general  course  of  his  vein  in  his  discovery  notice,  and, 
notwithstanding  those  courses,  he  can  postpone  marking  the  ground 
for  90  days  thereafter,  so  that  the  boundaries  of  his  claim  may  be 
traced,  it  should  necessarily  follow  that,  if  the  course  given  in  the 
notice  posted  is  not  the  true  course  of  the  lode  as  ascertained,  he  may 
swing  his  claim  so  as  to  include  within  his  boundaries  ground  that 
was  not  embraced  in  the  notice  of  discovery,  provided  it  includes 
the  true  course  of  the  vein  claimed.  This  right  to  postpone  thus 
gives  a  discoverer  a  circle  to  move  his  claim  in  until  he  marks  its 
boundaries,  the  radius  of  the  circle  being  ordinarily  a  distance  equal 
to  the  longest  distance  claimed  from  the  point  of  discovery.  This, 
for^  a  time,  practically  withdraws  a  large  area  from  the  public  do- 
main, and  compels  prospectors  to  abide  the  time  when  the  discoverer 
of  a  vein  may  elect  to  mark  his  ground.  We  doubt  if  congress  ever 
intended  such  a  consequence.  The  question,  however,  involves  fed- 
eral laws  and  statutes  complementary  of  federal  laws;  so  we  feel 
bound  by  the  interpretations  of  the  United  States  courts,  hence  dis- 
miss the  subject  with  the  foregoing  observations  of  our  own. 

The  application  of  what  we  have  said  necessarily  leads  to  the  con- 
clusion that  the  defendants  in  this  case  had  no  right  to  embrace  in 
the  location  of  the  Yukon  any  of  the  ground  included  within  the 
boundaries  of  the  Never^^eat,  as  the  plaintiffs  defined  said  bounda- 
ries, within  the  period  (0  90  days  after  their  discovery  of  the  Never 
Sweat.  The  judgmen'tMs  reversed,  and  the  cause  remanded,  with  di- 
rections to  grant  a  new  trial.  ,  » 


ti 


«-A  t^^CC-'TVUVN  i^-vs.^     ,J»»     POSTED    NOTICES.  lOQ   ''  ^ 

WILTSEE  V.  KING  OF  ARIZONA  MIN.  &  MILL,  CO.     »  ^i^ 
1900.     Supreme  Court  of  Arizona.     7  Ariz.  95,  60  Pac.  896.     -^"^^i;' 

Action  by  E.  A.  Wiltsee  against  the  King  of  Arizona  Mining  and  »  w#^ 
IMilling  Company.  From  a  judgment  for  defendant,  plaintiff  ap-  •'*^^^ 
peals.     Affirmed.  CtS'*'^^ 

Sloan,  J.^^ — The  King  of  Arizona  Mining  Sz:  Milling  Company,  /it,A^X" 
appellee  herein,  made  application  in  the  United  States  land  office  at  .    ^,  A 
Tucson  for  patents  to  a  group  of  mining  claims  situated  in  Yuma  ^^"^ 
county,  among  them  being  one  known  as  the  "Homestake."     The  * ' '£ji3>"-^ ' 
official  survey  of  the  Homestake  showed  that  it  conflicted  with  the  -^jj^)  * 
Black  Iron  and  the  Iron  Mask  mining  claims,  owned  by  the  appel-     ^  ,^ 
lant,  Wiltsee,  the  area  of  conflict  between  the  Homestake  and  Black  ^^ 
Iron  claims  being  3.6  acres,  and  the  area  of  conflict  between  the  VuCr^ 
Homestake  and  Iron  Mask  claims  being  5.6  acres.     Wiltsee  filed  ^         j 
his  adverse  in  the  land  office  against  the  issuance  of  patent  to  the  ^•'^-^^  \ 
appellee  to  the  ground  in  conflict,  and  within  the  time  allowed  by  cx-<J  c^a. 
law  in  aid  of  said  adverse  brought  suit.     *     *     *  Jttt'^ 

The  Homestake  mining  claim  location  was  initiated  February  15,  *^^ 
1897,  by  one  Eichelberger,  who,  as  the  testimony  shows,  called  him-  C*->*^ 
self,  "for  convenience  sake,"  Charles  Edwards.    On  this  date  Eichel-  l^^jp. 
berger  erected  a  monument,  and  placed  therein  the  following  notice :    ^ 
"Notice  of  Homestake  Lode.  We  claim  by  discovery  1,500  feet  alongt^  O'^VC 
this  vein  and  300  feet  on  each  side  of  this  notice.  We  claim  150  feet^ 
in  a  westerly  direction  and  1,350  feet  in  an  easterly  direction.    Lo-»VSWi 
cated  this  day,  the   15th  of  February,   1897,  by  Charles  Ed  wards  \j\^r|L't, 
and  H.  B.  Gleason."  One  of  the  disputed  questions  of  fact  upon  the  1  »  V 
trial  was  as  to  whether,  at  the  time  Eichelberger  initiated  this  \oca.-f\JM  U 
tion,  he  erected  any  other  monument  than  the  one  in  which  the  notice  ^_^wi^ 
was  placed.   The  appellant  sought  to  prove  that,  in  addition  to  the        v 
initial  monument,  Eichelberger  erected  one  at  the  easterly  end  of  the  VVvt  vvS 
claim ;  that  subsequently,  after  the  location  by  appellant's  grantors  "k-n^ajH 
of'the  Black  Iron  and  Iron  Mask  mining  claims,  he  shifted  the  east-  i„^  ^  _^ 
erly  end  from  the  point  where  the  original  monument  was  claimed  lv=-''^ 
to  have  been  placed  to  a  point  about  800  feet  northerly,  taking  in,  <;^,j^  t 
in  this  way.the  area  of  conflict  between  the  Homestake  and  the  Black    '        ^ 
Iron  and  Iron  Mask.    The  contention  of  the  appellee  was  that  no  t-Jwv  * 
monuments  were  built  at  the  time  of  the  discovery  and  location  of  0^it^ 
the  Homestake  except  the  initial  monument,  until  late  in  February,    .       J. 
wdien  Eichelberger  and  one  Guerra  built  one  on  the  west  end  line ;  (A  *"^ 
and  that  no  monument  was  erected  on  the  east  end  line  of  the  ^^^^^  ^^,^^^ 
until  March  23d,  when  Eichelberger  completed  the  location  of  the^*****^^ 
claim  by  the  erection  of  the  other  monuments  required  to  fully  mark  •^'^.^aa**^ 
out  the  boundaries  of  the  claim. 

^'  Parts  of  the  opinioa,are  omitted.    fV^'tJ'-*^^  ^  "  \  ^ 


,   ,    170  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

-.  •  The  assignment  of  errors  made  by  appellant  presents  two  ques- 

•^  tions    for   our   consideration:    First.    Assuming   that   Eichelberger 

3f*cH/    changed  subsequent  to  his  discovery  and  initial  location  of  the  Home- 
:  stake,  and  within  the  90  days  required  of  the  locator  to  perfect  his 

•v-y*        location,  the  course  of  his  location,  by  moving  the  easterly  end  line 
"►/v*'  '    ^^''^^^o^  so  as  to  include  portions  of  the  Black  Iron  and  Iron  Mask 

claims,  under  his  location  notice  did  Eichelberger  possess  the  right 
•^  to  make  such  change,  and  take  in  any  portion  of  the  Black  Iron  and 

Lj         Iron  Mask  mining  claims  ?**-!= 

The  sufficiency  of  the  notice  of  location  made  by  Eichelberger 
K\Jt*  posted  on  the  claim  at  the  time  of  the  discovery  of  the  lode  is  not 
,  Q  raised  by  appellant.   On  the  contrary,  his  contention  is  that  the  notice 

of  location  first  posted  defined  with  such  particularity  the  course  of 
©k  «^the  claim  lengthwise  that  its  direction  could  not  thereafter  be  changed 


01 


P 


A        to  the  prejudice  of  intervening  locations.    The  question,  therefore, 
*■     under  this  contention,  becomes  one  of  construction  of  the  language 
used  in  the  notice  of  location  of  the  Homestake,  "We  claim  150  feet 
in  a  westerly  direction  and  1,350  feet  in  an  easterly  direction,"   J^^o- 
tices  of  location  have  been  liberally  construed  by  the  courts.    It  is 
,      ,        recognized  that  miners  have  put  but  scant  opportunity  of  definitely 
'^        ,.  locating  and  describing  locations  when  these  are  made,  as  frequently 
^¥f^  ,    happens,  in  remote  and  but  little  known  localities ;  and  the  physical 
conformation  of  the  country  may  be  such  as  to  require  much  time" 
and  labor  to  determine  the  true  course  and  strike  of  the  mineral-bear- 
ing vein  or  lode  which  may  be  the  subject  of  the  location.   The  same' 
r^t4^    strictness  in  construing  a  clause  in  a  notice  of  location  required  in 
"7  ii^>v  construing  a  deed  would  obviously  be  unfair  and  unjust  to  the  miner. 
'  .  Regard  should  be  had  to  the  meaning  which  the  terms  "easterly."  and 

-  '-''^  "westerly"  are  given  by  the  miners.  There  is  no  rule  of  necessity, 
^*^  such  as  exists  in  the  construction  of  a  deed,  which  requires  that  the 
VvH^Y  ^^^"^  "easterly,"  used  without  qualifying  language,  shall  denote  due 
1>  J  east,  and  the  term  "westerly"  shall  denote  due  west.  In  the  sense  in 
which  "easterly"  is  used  by  the  miner  and  prospector,  the  term  de- 
AA  h.  notes  the  general  course  of  a  vein  or  location  running  nearer  towards 
*j^jjj^  the  east  than  any  of  the  other  cardinal  points  of  the  compass.  A  no_- 
^ZT^  tice  of  location,  therefore,  which  gives  the  course  of  the  location  asf 
"^ ,  running  westerly  so  many  feet  and  easterly  so  many  feet  from  a  dis-| 
J  covery  shaft  or  point  of  discovery,  until  boundaries  are  definitely! 

A  located  by  the  erection  of  monuments,  must  be  held  to  reserve  from  1 
n  entry  by  subsequent  locators  the  surface  area  which  might  be  in-  p 
"to4.-^cluded  within  any  location  so  made  that,  were  a  line  drawn  length- 
wise through  the  center  of  said  claim  from  the  west  center  end, 
'  ^'*^''  through  the  point  of  discovery  to  the  east  center  end  of  said  claim, 
%jcxA:'  said  line  would  lie  at  some  point  between  east,  45°  north,  and  east, 
rj^  45°  south,  from  the  point  of  discovery.    Should,  however,  the  lo- 

->.        cator,  at  the  time  of  posting  his  notice,  in  addition  to  giving  the  gen- 
-^^       eral  course  of  his  vein,  place  monuments  at  the  center  of  each  end 


V- 


line,  and  thus  definitely  give  notice  to  subsequent  locators  as  to  the   )'>lWs« 
meaning  and  intent  of  the  language  used  in  his  notice  as  to  the  gen-    iji  v  ^ 
"^fal  course  of  his  location,  we  think,  under  the  law,  he  is  bound  by   ^^"^ 
the  location  thus  made  and  defined,  so  that  he  may  not  thereafter,   ^t^-0 
and  during  the  90  days  permitted  for  the  perfection  of  his  location,  \i^  ^^ 
change  the  course  of  his  location  to  the  prejudice  of  intervening  '^ 
T  I  rights.   It  would  be  unjust  to  permit  a  locator  who  has  thus  marked  ^TacA^ 
■^     out  the  course  and  direction  of  his  location  with  certainty,  to  include  j^ 

subsequently,  by  a  change  in  the  course  of  bis  location,  discoveries  of '^  *-^*^ 
mineral  and  parts  of  locations  which  others  may  have  made  relying  ''>^t)^ 
upon  the  express  representations  of  the  prior  locator  as  to  the  extent  Ujl,^^!- 
of  his  rights.  .      ^. 

Applying  these  views  to  the  case  at  bar,  assuming  that  Eichel-  P^'^* 
berger,  at  the  time  of  posting  the  notice  in  question,  erected  i^oi^Jl. 
other  monuments  than  the  one  at  the  point  of  discovery,  his  subse- "^y"^^^ 
quent  location  of  the  east  center  end  monument  of  the  Homestake  ^U^  0^ 
at  the  point  now  claimed  for  it  was  a  substantial  compliance  with  f^  «<^ 
the  notice  of  location,  and  no  intervening  rights  to  the  ground  in  U<:^,^>^ 
controversy  were  acquired  by  Wiltsee's  grantors  through  their  loca-  //in 
tion  of  the  Black  Iron  and  Iron  ]\Iask  claims.     If,  however,  Eichel- 1"**"*^ 
berger,  at  the  time  of  posting  his  location  notice,  erected  a  monument  Iwr  H< 
at  the  center  of  the  east  end  line,  such  end  line  could  not  thereaf ter^^  ^^^^^^^^ 
be  changed  so  as  to  include  within  the  boundaries  of  the  Homestakef      .   B^ 
any  portion  of  the  Black  Iron  and   Iron  ]\Iask  which  would  not^  ^W 
otherwise  have  been  included  had  the  east  end  line  of  the  Homestake>(,._Si,  \,^ 
remained  as  established  by  Eichelberger.     The  record  discloses  a  \        1 
sharp  conflict  of  evidence  as  to  whether  or  not  Eichelberger  had,  ♦'"^  <  ^ 
prior  to  the  location  by  Cain  and  O'Brien,  fixed  the  center  of  the  east  U^^^  , 
end  line  of  the  Homestake  by  the  erection  of  a  monument  and  the  I      . 
placing  of  a  notice  thereon.   It  was  left,  therefore,  to  the  jury  to  de-^„«>T « 
termine  this  question  of  fact.    *    *    *    As  we  have  seen,  the  location  . 
notice,  as  posted,  did  not  definitely  locate  the  easterly  end  of  the  Tw-R4^ 
Homestake  claim,  and  under  the  law  Eichelberger  had  the  right,  ^f„^jg^ 
within  90  days  after  initiating  his  claim,  to  locate  his  easterly  end  of     ^ 
the  Homestake  at  any  point  1,350  feet  in  an  easterly  direction  fromfvM     ^ 
the  point  of  discovery,  unless  he  had,  prior  to  the  location  of  the  ^^^j^^^..^ 
ground  in  conflict  by  Cain  and  O'Brien,  definitely  located  the  same  ^  .y^^^ 
by  the  erection  of  a  monument  and  the  placing  of  a  notice  therein.  *^^     4 

We  find  no  reversable  error  in  the  record,  and  the  judgment  is  i»>A|A> 
therefore  affirmed.  CA.aj^ 

^  Uc<e  yoo  ^  r  ^^^ua  (h^  i^^H.  Hie^  jiu^  <^ 


.  J  172  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 


^U<^/if«^}^'         UPTON  V.  SANTA  RITA  MINING  CO. 

%  ?    ^T"*^ 

Jit    tt^fM       S^^TA  RITA  MINING  CO.  v.  UPTON. 

^J         1907-     Supreme  Court  of  New  Mexico. 

ri-occ;  Action  [in  support  of  an  adverse  brought]  by  James  N.  Upton 
f-tr  t^'  against  the  Santa  Rita  Mining  Company.  From  a  judgment  in 
^\hf^   favor  of  plaintiff,  defendant  appeals  and  brings  error.    Affirmed. 

Pope,  J.^^ — *  ^  ^  j^  further  assignment  of  error  is  that  the 
^"^-^  court  erred  in  withdrawing  from  the  jury  all  testimony  as  to  the 
^  (;;  location  of  the  true  west  side  Hne  of  Santa  Rita  No.  33,  a  patented 
(^tft^n  claim  immediately  east  of  plaintiff's  Slip  location,  and  in  refusing 
L'()«y^to  give  certain  instructions  embodying  defendant's  theory  as  to  the 
effect  of  this  testimony.  A  large  part  of  the  record  in  this  case  is 
V^  ^  made  up  of  testimony  as  to  where  this  side  line  was  located.  Plain- 
r>»-.fe,.  ^  tiff's  witnesses  indicated  the  original  monuments  to  be  100  feet  far- 
'Xt^iS>  ther  east  than  the  defendant's  witnesses.  The  relevancy  claimed  for 
\  Wx4^4^his  arises  from  the  fact  that,  according  to  the  Slip  location,  the  lo- 
pyA  cation  notice  of  that  claim  was  placed  upon  its  east  side  line,  and  at 
j^^  the  west  side  line  of  the  Santa  Rita  No.  33,  as  located  on  the  ground 
'^''''^A/x by  plaintiff.  If,  therefore,  the  contention  of  the  defendant  as  to  the 
->^  location  of  the  west  line  of  Santa  Rita  No.  33  be  well  taken,  plain- 

^^       tiff's  location  notice  was  100  feet  within  patented  ground  belonging 
''        to  the  claim  last  named,  and  if,  as  contended,  that  fact  invalidated 
the  location,  then  the  court  erred  in  withdrawing  from  the  jury  the 
testimony  as  to  the  location  of  the  Santa  Rita  No.  33 ;  otherwise 
not.     The  territorial   statute  upon   this   subject    (Comp.   Laws,   § 
2286)  provides  that  any  person  desiring  to  locate  a  mining  claim 
ij""^      must,  among  other  things,  post  "in  some  conspicuous  place  on  such 
location  a  notice  in  writing  stating  thereon  the  name  or  names  of 
fc^  '     the  locator."    These  regulations,  being  supplemental  to  and  not  in- 
'^2fy     consistent  with  the  federal  mining  laws,  are  valid,  and  a  failure  to 
comply  substantially  with  them  renders  the  location  void.     Lockhart 
^-      v.  Wills,  9  N.  M.  344,  54  Pac.  336 :  same  case  sub  nom.  Lockhart 
f\  P*M  ^'  Jo^i^son,  181  U.  S.  516,  21  Sup.  Ct.  665,  45  L.  Ed.  979;  Deeney 
^      v.  Mineral  Creek  Co.,  11  N.  M.  279,  67  Pac.  724.    The  requirement 

'■J/V"li'  j      ^  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 
'  For  another  part  see  post,  p.  333.  ^,.  «> 

i^^  /    f^^.''   c^  .  a-a^  *«>-*"»  ^''■^ 


u 


I*. 


'  POSTED    NOTICES.  I73    fc-L-  //"«. 

being  that  such  notice  shall  be  posted  "in  some  conspicuous  place  on    .  ^ 

the  location,"  was  it  satisfied  in  this  instance?    We  are  of  opinion   v^^^^-Xt 
that  the  testimony,  whether  viewed  from  plaintiff's  or  defendant's  (^_jj»^  \^ 
standpoint,  is  to  the  effect  that  the  posting  was  within  the  Slip  claim  j^^-  f 
as  laid  out.     The  position  seems  to  be,  however,  that  because  a  part  *''''^'"*^ 
of  that  location  is  (upon  defendant's  view  of  the  evidence)  within ^tr^j^^ 
Santa  Rita  No.  33,  and  because  the  location  notice  is  upon  that  part,  ^ 
therefore  the  notice  is  not  upon  the  location  within  the  meaning  of  ^— '^M*-'* 
the  statute.     We  do  not  concur  in  that  view.     Granting  that  the  SlipJ^iA*^^^ 
lode  parially  overlaps  No.  33,  that  fact  goes  not  to  the  locus  of  i    ^.^.^ 
the  Slip  claim,  but  to  its  ultimate  validity.     The  Slip  claim  was  no  ^  *'*''*'; 
less  located  as  contended  because  ultimately  a  part  of  it  may  be  t^JtC^-fi 
found  to  be  improperly  upon  another  claim.    The  Slip  location  notice  c^  lyjiJ 
is  no  less  upon  such  location  because  later  it  may  be  found  that  that   / 
portion  of  the  Slip  conflicts  with  another  location.     The  question  of  f^ciV" 
whether  a  notice  is  within  a  location  is  to  be  determined  by  the  ^^k^^pA 
boundaries  of  that  location  as  laid  out,  not  by  the  boundaries  as   ^^  m 
they  may  be  reduced  by  the  subsequent  ascertainment  of  conflicts  ^i«v>'^*<^ 
(        with  patented  land.     It  is  to  be  determined  as  of  the  date  of  the  >-■  ^J^^ 

original  location,  not  of  subsequent  date.     In  announcing  this  po-  ^  ^ 
2^    sition,  we  have  not  overlooked  the  fact  that  the  authorities  are  unani-  **  "^^ 
P^    mous  to  the  effect  that  a  mining  claim  without  a  discovery  point  i^S^  »v 
IV      is  void,  and  that,  if  such  discovery  be  located  in  the  first  instance  jOM  *, 
VtA  upo"  the  land  of  another,  or  if  subsequent  to  location  they  be  lost  to  '^v(/ 
^  the  locator  by  the  patenting  of  that  portion  of  his  claim  to  another,   ^h^^^if^ 
^    his  whole  claim  is  lost,     i  Lindley  on  Mines,  §  338 ;  Gwillim  v.  Don-~^ 
^-  nellan,   115  U.  S.  45,  5  Sup.  Ct.  mo,  29  L.  Ed.  348;  Miller  v.  OCM^^ 
?     Girard,  33  Pac.  69,  3  Colo.  App.  278.  ^UlS^a.^ 

'jU^f^J^he  distinction  between  that  and  the  present  case,  however,  is  l^ 

"^readily  seen.  There  can  be  no  mining  claim  without  a  discovery,  V^"^ 
y  for  that  constitutes  the  very  basis  of  the  title.  If,  therefore,  the  cJVv  <^ 
t  discovery  be  upon  the  land  of  another,  any  portion  of  the  claim  out-  ^  --• 
side  of  such  lands  can  derive  no  validity  from  the  discovery  within  ^>\4tiU^ 
^  such  lands,  for  non  constat  but  that  the  lands  without  are  totally  -""— ^ 
A  lacking  in  mineral  in  place.  A  patent  issued  for  them  upon  a  dis-  VlKiaJf^ 
I  L  covery  within  the  lands  of  another  might  result  in  alienation  of  the  i^.  h. 
*^*  public  land  without  any  discovery  to  support  it.  So  if,  subsequent  /^^l 
*^*.  to  his  location,  a  party  permits  the  portion  of  his  claim  containing  f^%>>f*>^ 
i  y  his  discovery  to  be  taken  away  from  him  by  another's  unadversed  ^^  f^ 
\^  application  for  patent,  he  is  left  with  part  of  his  claim,  but  no  discov-  1^ 

\x      ery  to  support  it,  and  the  claim  is  thus  lost.    The  posting  of  a  loca-  f*"*^  »* 

\    tion,  however,  is  not  the  basis  of  the  title.  It  is  simply  a  provision  of 
^      law  bv  which,  in  connection  with  the  subsequent  record,  the  world 


mav  liave  notice  that  the  land  described  is  being  claimed  as  a  min- 


ing' location.     We  see  no  reason  why  such  notice  posted  within  theWv  T^ 
,       claim  is  ineffectual  simply  because  that  part  of  the  location  may,  pa-<ri 


u 


^,^  ^  Vv^  p^  ^-'^^  J-—^  •* — r  pr  -    -«wnr  -/N  '  »— '7  *-'-'  t'  -"-'fc-^^  ^  V  w\^af^%.'^'^■^    i^y 


74  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 


i^rfjk'  through    inadvertence   or   otherwise,    overlap    another    claim.     We 

must  not  overlook  the   fact  that,  as   stated  in  Deeney  v.   Mineral 

^  fjXx^^reek  Co.,  supra,  no  appreciable  time  intervenes  between  discov- 

"^  ery  and  the  position  of  the  location  notice  under  our  statue.     In 

€x^       many       instances,       the     boundaries     of    adjoining       claims     are 

f-X^       doubtful  by  reason  of  destruction  or  obliterations  of  monuments, 

.and  in  such  instance,  without  accurate  survey,  such  boundaries  can- 

/^■tA-^-jiot  be  definitely  ascertained.    To  hold  that,  because  through  honest 

fLmf^  mistake  the  small  portion  of  the  location  upon  which  the  notice  is 

'  posted  overlaps  an  adjoining  claim,  therefore  the  whole  claim  is 

jiftj^^,     void,  is  to  declare  that  a  miner  must  carry  with  him  at  the  very 

start  a  skilled  surveyor  in  order  to  be  certain  that  his  location  is 

valid.    We  do  not  believe  this  to  be  within  the  spirit  of  the  mining 

Kr'         laws,  which  have  ever  held  that,  in  the  matter  of  location  notices, 

y^*"      the  court  will  take  a  liberal,  and  not  a  narrow,  view.     Erhardt  v. 

-e^  .    Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  11 13;  i  Lindley  on 

gi^^l^  Mines,  §  355 ;  Gird  v.  Calif.  Oil  Co.  (C.  C.)  60  Fed.  531  ;  Donahue 

»  '  V.  Meister,  88  Cal.  121,  25  Pac.  1096,  22  Am.  St.  Rep.  283. 

W»->^"'>        Nor  do  the  views  here  announced  overlook  the  settled  principle 

(J-l/^JN  that  a  location  held  by  patent  or  by  prior  location  is  property  in  the 

''         .highest  sense,  and  that  no  rights  upon  it  can  be  initiated  by  tres- 

'  repass.    We  hold,  however,  not  that  a  conflict  with  an  adjoining  claim 

')   by  a  subsequent  locator  confers  any  rights  as  against  such  prior 

"^  claim,  but  that,  as  to  the  portion  of  the  mining  claim  lying  without 

A^'^X     such  claim,  the  location  is  not  rendered  void  by  the  mere  fact  that 

I        the  notice  may  be  upon  such  patented  or  previously  located  ground. 

^  '        As  above  pointed  out,  it  is  none  the  less  within  the  lines  of  the  loca- 

,v^    7  tion  as  made,  and  that  is  all  the  statute  requires.    The  precise  point 

J     here  considered  seems  never  to  have  been  considered  by  the  courts ; 

""■^/     court  did  not  err  in  withdrawing  from  the  jury  the  immaterial  issue 


T'^^-Hi  but,  in  the  case  of  Perigo  v.  Erwin  (C.  C.)  85  Fed.  904,  the  facts 


were   not  dissimilar.     *     *     *     In   our   judgment,   therefore,   the 


I'H-HV' 


as  to  the  west  boundary  of  Santa  Rita  No.  -53.     *     *     * 
The  judgment  is  accordingly  affirmed. 

-^  ^%  

BUTTE  NORTHERN  COPPER  CO.  et  al.  v.  RADMILOVICH. 
C^     1909.    Supreme  Court  OF  Montana.    39  Mont.  157,  ioi  Pac.  1078. 


Consolidated  actions  [in  support  of  adverse  claims]  by  the  Butte 
Northern  Copper  Company  against  John  Radmilovich,  and  John 
Stepan  against  the  same  defendant.    Defendant  appeals  in  each  case 
^    from  a  judgment  for  plaintiff  from  an  order  denying  a  new  trial, 


^_„>t  <?U^4;v^(-<.  i^^T^sw::^-  .tf^^Mfi .  lUo^  0^  i' 

POSTED    NOTICES.  •'■75  "/Cov-sA 

and  from  an  order  amending  the  judgment.     Order  denying  a  new  ^"^-KsU  c** 
trial  affirmed  in  each  case.  />Jfe.</\JB! 

Order  in  each  case  amending  the  judgment  reversed,  and  causes  s      gy^ 
remanded  with  instructions  to  strike  out  the  amendment,  and,  as  so  *'^^ 
amended,  judgment  affirmed.  f^.,^UM 

HoLLOWAY,  J.^" — *  *  *  At  the  conckision  of  the  evidence  the^,j^  £*« 
court  found  that  defendant  had  posted  his  notice  of  location  of  the  >dJ&xa- 
Balkan  lode  claim  three  days  prior  to  the  time  plaintiffs  posted  their  J"^ 
notices  of  location.  The  finding  proceeds:  "In  this  case  both  parties  U,  S«  i»^ 
proceeded  to  do  and  did  all  things  necessary  to  make  their  locations.  j-i,a«S 
valid,  save  that  defendant's  notice  of  location  which  was  posted  three ^^"^"^ 
days  prior  to  plaintiffs'  was  not  posted  'at  the  point  of  discovery'  as^-NftSMJ^ 
required  by  statute,  but  was  posted  60  feet  west  of  a  vein  exposure  CitJ^ — if 
m  the  Sea  Lion  cut.  Further,  his  notice  was  of  a  north  and  south  »ry 
veiuj,  while  the  above  vein  exposure  ^as  of  an:  east"  and  West  vein.""  ^"^-^  ^'^ 
THe  conclusion  of  the  court  was  that  plaintiffs  are  entitled  to  the^j^^TJI^K 
ground  in  controversy  and  to  a  patent  therefor.  A  judgment  was  ac-  ^k^jJ^ 
cordingly  rendered  and  entered  in  each  case  in  favor  of  the  plaintiffs  '^^''^*** 
and  against  the  defendant.    *    *    *    The  defendant  appealed.    *    *    *  t>.wa^^ 

The  trial  court  found  that  defendant  was  prior  in  time  in  posting  f^jog^jc* 
his  notice  of  location,  but  held  the  plaintiffs'  locations  prior  and  su-    ^w 
perior,  because  (a)  defendant's  location  notice  was  not  posted  at  the^  U^^^ 
point  of  discovery,  and  (b)  his  notice  described  a  north  and  south  .,  JlA^ 
vein,  while  the  vein  exposure  was  of  an  east  and  west  vein.     TheC-*^f  ^' 
evidence  is  sufficient  to  sustain  the  finding  of  the  court  that  the  de-  ^^.J'.  * 
fendant  did  not  post  his  location  notice  at  the  place  of  discovery,  as   ^^  V" 
required  by  section  3610  above.    The  evidence  tends  very  strongly  ^.^  f\^^ 
to  show  that  he  made  discovery  on  March  15th  or  eadier;  that  he    jJ^     ^ 
discovered  mineral-bearing  rock  in  place  near  the  extreme  westerly  €^l  ^f%, 
boundary  of  his  claim  and  several  hundred  feet  from  the  place  where  ^-k  v^  C  ^ 
he  posted  his  notice  of  location ;  that  he  also  found  mineral-bearin^V  ^ 
rock  in  place  exposed  in  an  excavation  on  the  Sea  Lion  claim,  somejx^^j^  ^^^ 
50  or  60  feet  from  the  place  where  he  posted  his  location  notice.  , 

We  agree  with  counsel  for  appellant  that  the  locator  is  not  required  t^^-^*-^  I 
to  sink  his  discovery  shaft  at  the  point  of  discovery  (O'Donnell  v.  ^^^  't^ 
Glenn,  8  Mont.  248,  19  Pac.  302)  ;  but  that  question  is  not  the  one  ^^^.^^J^ 
involved  here.     The  question  here  presented  is,  must  he  post  his  ^^ 

notice  of  location  at  the  point  of  discovery?    The  statute  provides t>^-^' 
tTiat  he  shall  do  so.    The  successive  steps  provided  for  are  (i)  dis-^  .  ^^' 
covery,    C2J   posting  notice   of  location,    (3)    marking  boundaries,  %/     v 
(4)  sinking  discovery  shaft,  etc.     In  his  article  on  Mines  and  Min-  -^  Cj-^y 
erals,  27  Cyc,  at  page  564,  in  speaking  of  the  place  where  the  notice  — s»  ^ 
of  location  must  be  posted.  Judge  Clayberg  says:     "The  place  of  ^V^ 
posting  the  notice  is  generally  designated  by  statute  or  local  rule,  the  f**'^^*-' 
requirements  of  which  must  be  complied  with."    As  observed  above,  f^Q  ^ 

"  Parts  of  the  opinion  are  omitted.  Wv^.  T  ^nJL.  C— O— 4'  v     '-''-^^"A^^     L»*-vi 


^  "^n,  rr  ra^-'°  «£^.^ 


A  r  Li  -rnv- 


^'"^         176  LOCATION    OF   LODE   AND   PLACER   CLAIMS.  ' 

-  /^  our  statute  requires  that  the  notice  shall  be  posted  "at  the  point  of 
^  '  discovery."  The  posting  of  this  notice  is  done  long  before  the  dis- 
;<^Av<■  covery  shaft  is  required  to  be  sunk,  and  the  only  direction  as  to 
J7  A  where  the  discovery  shaft  shall  be  sunk  is  that  it  shall  be  within  the 
V*^       claim  and  upon  the  lode  or  vein.    It  cannot  be  said  that  the  defend- 

v^  „  ant  complied  literally  or  substantially  with  the  statute  in  posting  his 
jV^*^  notice  of  location  at  the  point  where  it  was  posted.  But  our  atten- 
^^^'2  "  tion  is  directed  to  the  fact  that  upon  April  15th  he  sunk  his  disco v- 
L^X^^  ery  shaft  at  the  point  where  he  posted  his  notice  of  location,  and  that 
f-vs»-/      *^^  ^^'^^  ""^^^  disclosed  in  this  shaft.    The  record  bears  out  this  state- 

^    '    ment,  and,  but  for  the  intervention  of  plaintiffs'  rights,  such  discov- 
"VC-t.       ery  would  have  supported  his  location  (27  Cyc.  558)  ;  but  because 
of  the  intervention  of  the  rights  of  plaintiffs,  defendant's  location 

"•  I       must  be  held  to  be  postponed  until  April  15th,  the  date  when  he 

4       posted  his  notice  of  location  at  the  point  of  discovery.    We  do  not 

»=-C.V       agree  with  the  conclusion  of  the  trial  court  that  a  notice  of  location 

^y^         describing  the  course  of  the  vein  as  north  and  south  will  not  support 

fcis*  a  location  of  a  claim  along  a  vein  the  general  course  of  which  is 

^^'*      east  and  west  (Sanders  v.  Noble,  22  Mont,  no,  55  Pac.  1037)  ;  but 

>rev-x     this  is  of  little  consequence  in  this  case,  in  view  of  what  is  said 

jy    I     above.     *     *     * 

^  The  causes  are  remanded  to  the  district  court  with  directions  to 

^^^  1 'Strike  out  the  amendment  in  each  judgment  awarding  costs,  and,  as 
'^^^''^''^ '  so  amended,  the  judgments  will  be  affirmed.  Each  party  will  pay 
(^         his  own  costs  of  these  appeals.-*' 


I    Section  3. — Marking  ^he  Location. 


.-».;' 


FEDERAL  STATUTES. 


Sec.  2324.     *     *     =5=     The  location  must  be  distinctly  marked  on  the  ground 
so  that  its  boundaries  can  be  readily  traced     *     *     *.— Rev.  St.  U.  S.,  §  2324. 


"^  J  "''  In  Doe  V.  Waterloo  Min.  Co.,  17  C.  C.  A.  190,  70  Fed.  455,  461,  Knowles, 

tti,^^\      District  Judge,  said :     "It  is  urged  that  the  notice  posted  by  Newbill  was  not 

,,  •■->    placed  upon  the  vein  located.    The  evidence  is  that  it  was  placed  upon  a  part 

/V^*»\'     of  the  said  vein, — a  spur  thereof.    It  was  not  necessary  that  the  notice  should 

Lrrf     be  placed  upon  the  croppings  of  the  vein.     If  near  by  the  same,  it  would  be 

'''^r^     sufficient  if  it  indicated  the  vein  sought  to  be  located.     Phillpotts  v.  Blasdel, 

/  »     ,     4  Morr.  Min.  R.  341.     Parks  and  his  associates  had  no  trouble  in  determining 

what  was  the  vein  Newbill  sought  to  locate." 

An  error  in  the  description  contained  in  the  notice  by  which  the  subse- 
i.-v  '       quent  locator  was  not  misled  in  tracing  the  boundaries  is  immaterial.     Sturte- 
':"■      vant  v.  Vogel,   167  Fed.  448.     If  by  any  reasonable  construction  the  notice 
^  -'    ■       of  location  imparts  to  subsequent  locators  knowledge  of  the  location,  it  is    . 
sufficient.     Nicholls  v.  Lewis  &  Clark  Co..  18  Ida.  224,  109  Pac.  846;  Flynn   \ 
.:         ,  ;  Group  Min.  Co.  v.  Murphy,  18  Ida.  266,  109  Pac.  851.  J  '    y         W 


*^  MARKING   THE   LOCATION.  177  ^^  ^  ^  ^ 

COLORADO  STATUTE.2  1  .        ^ 

Before  filing  such  location  certificate  the  discoverer  shall  locate  his  claim  by :  I 

*    *    *  fij4^  U^ 

Third — By  marking  the  surface  boundaries  of  the  claim. — Rev.   St.   Colo.  J  \    4--     %, 

1908,  §  4197.  ^^^  \LS 

Such  surface  boundaries  shall  be  marked  by  six  substantial  posts  hewed  or  ^  f'teA^ 

:  marked  on  the  side  or  sides  which  are  in  toward  the  claim  and  sunk  in  the      ,,,    /— — 

j  ground,  to-\vit :  one  at  each  corner  and  one  at  the  center  of  each  side  line.  Ct<C'-V^ 

1  Where  it  is  practically  impossible  on  account  of  bed  rock  to  sink  such  posts,     «       /.wj 

\^  1  they  may  be  placed  in  a  pile  of  stones,  and  where  in  inarking  the  surface  boun-    *'*-^  ^-tr"^ 

\    I  daries  of  a  claim  any  one  or  more  of  such  posts  shall  fall  by  right  upon  pre-    i.sJT'C'^J^ 

I  cipitous  ground,  where  the  proper  placing  of  it  is  impracticable  or  dangerous  .m^ 

i>-|  to  life  of  limb,  it  shall  be  legal  and  valid  to  place  any  such  post  at  the  nearest    Shj-^  * 
'     I  practicable  point,  suitably  marked,  to  designate  the  proper  place." — Rev.   St.  <j>*  0-«s.- 

>^  -  DOE  V.  WATERLOO  MIN.  CO.     ^^j'lfee^  f^ 

fj^  1895.     Circuit  Court  of  Appeals.     17  C.  C.  A.  190,  70  Fed.  455- d-^^-^-*^ 

^  ^      Before  Gilbert,  Circuit  Jitdge,  and  Knowles  and  Hawley,  Dis-''t*~L»  U^ 
^     trict  Judges.  C«-fioV- 

Knowles,  District  Judge.-- — The  Waterloo  Mining  Com-  (^j^A< 
^f^pany,  on  the  12th  day  of  September,  1889,  made  an  appHcation  at  ^  ^  ,..  i 
^  the  United  States  land  office  at  Los  Angeles,  Cal,  for  a  patent  for  ^7^  I 
.        the  Red  Jacket  quartz  lode  mining  claim.     John  S.  Doe,  the  ap-  ^ 

pellant  in  this  case,  within  60  days  thereafter, — the  time  allowed  by  r^  *^  ** 

\     law, — filed  in  said  land  office  his  adverse  claim  to  the  claim  made  in  0-cof  L 

*      the  application  of  said  company,  in  which  he,  the  said  Doe,  claimed  g;,^-^ 

A»    to  be  the  owner  of  a  portion  of  the  premises  described  in  said  appli-  ^ 

I        cation  as  the  "Red  Jacket  Lode  Claim,"  and  which  portion  he  claimed  Vm^  tc 

to  be  the  Mammoth  lode  claim.     Within  30  days  after  filing  his  ad-  fyfrt^ 

verse  claim  said  Doe  commenced  this  action  against  said  company  -^jj.    t^ 

in  order  to  determine  the  right  to  the  possession  of  that  portion  of 

the  Red    Jacket  claim  which  is  described  as  the  "Mammoth  Clairn."  t^  (p-*^ 

The  cause  was  commenced  in  the  superior  court  of  San  Bernardino  Ij^^^f,^ 

vcounty,  Cal.,  and  on  petition  was  removed  from  the  same  to  the.       _JJ^ 

iJnite'd  States  Circuit  Court  for  the  southern  district  of  California.  ^  ^*""^ 

The  cause  was  tried  in  the  last-named  court,  and  judgment  ren-  ft>A  C< 

dered  for  the  said  company.     The  plaintiflf  then  appealed  the  cause    .  l.^  , 

to  this  court.  v  •  /T J 

From  the  evidence  it  appears  that  on  the  26th  day  of  March,  1881,  U^rvvVJ 

one  P.  H.  Newbill  made  the  discovery  of  a  mineral-bearing  vein  or  C-tSY-,^ 

lode   in  what  was   called   "Grapevine   Mining  District,"   San  Ber-  ^^-v^^^i  ' 

nardino  county,  Cal.     On  that  day  he  posted  a  notice  upon  said  ^^^  ^ 

premises  known  as  the  "Red  Jacket"  lode  or  claim,  claiming  the  . 

"  See  note  1,  ante.     See  also  relocation  statute,  p.  143,  ante.  O-^Kj-yt^ 

^  Parts  of  the  opinion  are  omitted.     See  ante,  p.  75,  for  some  of  such  parts.  ^(\ 
12-AIiNiNG  Law  ,,       ,  ^,  ,    ^,        'tUeit^ 


178  LOCATION    OF   LODE   AND   PLACER   CLAIMS. 

•s  right  to  locate  1,500  feet  on  said  lead  and  300  feet  on  each  side  of 

jn/        the  same,  and  also  claiming  the  right  to  have  20  days  from  said 
/  date  in  which  to  complete  his  boundary  monuments.     Subsequent 

j  to  the  said  26th  day  of  March  he  went  to  the  said  premises  with 
'  '■' '  '  the  view  of  marking  the  boundaries  of  his  claim,  but  owing  to  sick- 
"'  i'  ness  was  prevented  from  so  doing.  It  also  appears  he  had  some 
doubts  as  to  how  he  should  locate  his  claim.  On  the  nth  or  12th 
„  ^  of  April,  following,  he  made  an  agreement  with  G.  B.  Wallace,  H. 
^'-^"^  C.  Parks,  and  J.  B,  Farrell  to  the  effect  if  they  would  complete 
*'"*'  his  location  on  said  ground  he  would  give  them  one-half  of  said 

'^        claim.     In  accordance  with  said  , agreement,  on  one  of  said  dates 
p,*^        these  parties  did  mark  the  boundaries  of  said  Red  Jacket  claim  by 
•v^.     placing  along  the  same,  at  the  sides  and  ends  thereof,  some  seven 
L.      nionuments  of  stone,  about  2^2  feet  high.    They  posted  a  notice  on 
*"  »       the  center  monument  on  the  east  end  line,  describing  the  same,  and 
^''^'^*^'  which  was  a  location  notice.     On  some  of  the  other  monuments 
notices  were  placed  indicating  the  corners  of  the  location.     The 
said  location  notice  names  the  claim  as  the  "Red  Jacket  Gold,  Sil- 
ver, and  Nickel  Quartz  Mining  Claim."     The  name  in  the  Newbill 
notice  was  the  "Red  Jacket  Claim."    On  the  6th  day  of  April,  1881, 
six  days  before  Parks,  Wallace,  and  Farrell  marked  the  boundaries 
of  their  location,  and  some  ii  or  12  days  after  Newbill  had  posted 
A.  L^yj^^his  notice  on  the  same,  T.  C.  Warden  and  Dr.  G.  W.  Yager  located 
I  P     "  what  they  called  the  "Mammoth  Lode."     This  included  a  part  of 
^ '     the  Red  Jacket  lode  claim.     There  is  no  contention  but  that  the 
H^^^    boundaries  of  both  claims  were  properly  marked, 
(t  .  The  first  contention  is  that  the  location  of  the  Red  Jacket  gold, 

L*v       silver,  and  nickel  mining  claim  is  not  a  completion  of  the  claim 
made  by   Newbill.     The   supreme   court  of   California,   upon  the 
-w\   ,    same  evidence,  in  the  case  of  Newbill  v.  Thurston,  65  Cal.  419,  4 
I A  ^        Pac.  409,  held  that  it  was  not.    With  the  highest  respect  for  that  dis- 
^^       tinguished  court,  I  cannot  come  to  the  same  conclusion.     Newbill 
k^  V  .     undoubtedly  made  some  kind  of  a  mineral  discovery  on  the  ground 
2        located.     He  posted  a  notice  on  this  ground  claiming  the  right  to 
•*        locate  some  1,500  feet  on  the  same, — 500  feet  in  one  direction  and 
*^-^  «       1,000  feet  in  another  from  the  point  where  he  posted  his  notice.    He 
^ttj      went  upon  the  ground  after  this  with  the  view  of  marking  the  boun- 
t  ^    daries  of  his  location,  and  was  prevented  by  sickness.     He  made 
^*-^^j  an  agreement,  for  a  valuable  consideration,  with  Parks,  Wallace 
ftv-X      ^nd  Farrell,  by  which  they  were  to  complete  his  location.     In  pur- 
M  /^    suance  of  that  agreement  they  did  complete  it.     That  was  the  con- 
tract and  intention  of  all  parties.    The  fact  that  a  new  location  notice 
'^"^        was  posted  by  them  on  the  ground,  in  which  an  addition  of  some 
descriptive  terms  was  applied  to  the  name  given  in  the  location 
notice  of  Newbill,  cannot  make  it  a  new  location.    The  ground  was 
J       w'hat  was  sought,  not  a  name.     There  is  no  objection  to  changing 
^     ^    the  name  of  a  location  until  after  a  record  is  made  of  the  sarne. 


'^V*^^^    wv^->»— ^^  MARKIITG   THE   LOCATION.  179^        I 

There  can  be  no  objection  to  changing  the  description  in  a  location  «  J/"*'-*^ 
notice,  so  other  ground  is  not  embraced,  up  to  the  date  the  location  W-  --|>J 
notice  becomes  a  record.  From  necessity  such  a  fact  would  often  ^A 
occur  in  the  location  of  mining  ground.  A  location  notice  generally  ftSLfc,  ^^-^^ 
does  describe  the  ground  located,  and  not  what  it  is  proposed  to  lo-  JUf<  (p* 
cate.  The  notice  of  Newbill  should  have  no  other  force  than  a  i^otice  if|^_^j-^j^ 
of  discovery.    As  a  notice  of  discovery  and  intention  to  claim  and  lo-  [^ 

cate  the  ground  described  therein,  it  was  certainly  sufficient.  Er-  fw-'S^** 
hardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560;  Marshall  v.  Manu-  i^JO< 
facturing  Co.  (S.  D.)  47  N.  W.  293.  ^^(^  A 

There  is  a  considerable  space  in  the  brief  of  appellee  devoted  to.^^ 
maintaining  that  the  notice  and  acts  of  Newbill  were  a  sufficient  MH*  *  ^ 
location  of  the  Red  Jacket  claim ;  that  the  one  stake  he  placed  upon|!^  ^Jf^ 
the  ground,  claiming  500  feet  one  way  and  1,000  feet  in  another  way  »\^ 
on  the  vien  discovered,  with  300  feet  on  each  side  of  the  same,  was  C'*'^'''^'^^ 
a  sufficient  marking  of  the  boundaries  thereof.     In  the  location  of^Jigit**^ 
quartz  lodes,  before  the  mineral  act  of  1872,  such  a  mode  of  loca-|^^  Vjq^  ^ 
tion  was  common.    Since  that  date,  I  know  of  no  instance  in  which 
such  a  location  has  been  sustained.    Since  that  date,  it  has  generally  Oj  ^-^^^ 
been  held  that  in  some  way  the  location  should  be  made  in  the  form  1^  k^«^ 
of  a  parallelogram,  and  the  location  so  marked  that  its  boundaries  '  ^-*^ 
can  be  readily  traced.     The  cases  of  Golden  Fleece,  etc.,  Co.  v.  <;;Liiu.o-iJ 
Cable  ConsoL,  etc.,  Co.,  12  Nev.  312-330;  Book  v.  Mining  Co.,  58|^,^-^_^^ 
Fed.  106;  Gleeson  v.  Mining  Co.,  13  Nev.  442-558;  Holland  v.  Min-    , 
ing  Co.,  53  Cal.  149;  Gelcich  v.  Moriarty,  Id.  217, — maintain  f ully  ^"^  '^*^ 
that  such  a  location  as  is  claimed  for  Newbill  is  insufficient.     It  isj^ft-^. 
also  claimed  that  the  above-named  cases  decided  by  the  supreme  .^^ 
court  of  California  were  overruled  by  the  same  court  in  the  case^'^***'' 
of  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361.     I  do  not  think  U««?V^ 
this  should  be  asserted.     The  question  presented  in  the  last  case  A      * 
was  the  sufficiency  of  a  location  notice  under  the  local  rules  of  the  ^""^^ 
district,  and  not  as  the  marking  of  the  boundaries  of  a  claim.    Cer-  v^-V*** 
tainly  it  does  not  purport  to  overrule  the  former  cases.^   Many  cases  ,^<^^^^  ^ 
might  be  cited  from  other  states  and  territories  showing  that  such  ^ 

a  location  is  invalid.     *     *     *  t^iCXA* 

-V  j       The  next  point  presented  is,  were  the  boundaries  of  the  claim 
/    marked  and  the  location  completed  within  a  reasonable  time  after 

\1     the  discovery  by  Newbill?     *     *     *     There  is  no  doubt  but  the  :  ,. 

-^..^^^^^  discoverer  of  a  mineral  vein  should  have  a  reasonable  time  after^^  / 

ttre^discovery  of  his  vein  in  which  to  complete  his  location  embrac-*t  j  ,  -^ 
ing  tiie-  same.     *     *     *  j^  t 

Without  consulting  what  has  been  considered  by  rules  and  regula-  lA  i 
tions  or  statute  law  upon  the  subject  as  to  the  time  within  which  £j 
after  discovery  the  location  of  a  mining  claim  should  be  completed,  . 

we  would  sav  that  what  would  be  a  reasonable  time  for  such  com-  If^AOt 
pletion  would  depend  upon  the  circumstances  affecting  the  ability  ^^^^  ^ 


OUHL 


It^'^*'    l80  LOCATION    OF    LODE    AND    PLACER   CLAIMS. 

of  the  locator  to  properly  define  his  claim.  The  sickness  of  the 
rv>.>-j  locator  which  would  prevent  his  performing  the  necessary  work  to 
,4^^  accomplish  this  cannot  be  classed  as  such  a  circumstance.  Jones  v. 
^^v^%  Anderson,  82  Ala.  302,  2  South.  911 ;  19  Am.  &  Eng.  Enc.  Law,  p. 
.  '  1090.  _  If  sickness  w^ould  excuse  the  performance  of  the  necessary 
ykM^T)  work  in  completing-  a  location,  for  how  long  a  time  would  it  act 
^(i-j  as  an  excuse?  If  for  any  time,  why  not  for  a  very  long  and  in- 
s  y^^    definite  time?     I  think  the  circumstances  should  be  such  as  per- 

Y^*  tained  to  the  ground  to  be  located,  its  character,  the  means  of 
i  ^ ''  properly  marking  the  ground  sought  to  be  located,  and  the  ability 
■^'      to  properly  ascertain  the  dimensions  and  course  or  strike  of  the  vein 

U^      on  account  of  which  the  location  is  made.     Courts  that  have  been 

xtxit  Iav  c^^^^^  "Po^  to  try  mining  cases  have  observed  the  haste  with  which 

^      \  such  locations  are  made,  and  the  want  of  the  requisite  care  in  so 

marking  the  boundaries  of  the  locations  concerning  which  disputes 

(  -TT      arise  as  to  properly  embrace  the  apex  of  the  vein  which  is  sought  to 

^^.^^      be  appropriated.     Recurring  to  the  evidence  as  to  the  character  of 

^  ^ft^J-^^^  ground  where  this  location  was  made,  and  as  to  the  vein  on  ac- 

.    count  of  which  the  location  was  made,  and  we  find  that  the  ground 

jft        ^^^  "^*^"  ^  rough  mountain  side ;  that  the  vein  was  exposed  about 

■s*Jsi(     400  feet  in  one  place  and  about  40  in  another.  It  does  not  appear  that 

Xj^      the  dip  of  the  vein  was  exposed  at  any  point.     There  was  a  large 

»  amount  of  quartz  upon  the  side  of  the  mountain.     One  thousand 

"J^  y    feet  of  the  vein  was  covered.     Under  these  circumstances  I  think 
•^-^-f  .    20  days  was  a  reasonable  time  to  allow  for  the  completion  of  the     ' 

\    Newbill  location.    The  fact  that  neither  he  nor  his  associates    made       / 
_^ — -  -^  any  extended  researches  on  the  ground  in  order  to  fully  show  the     >^ 
r/,  cuc^course  of  the  vein  makes  no  difference.     They  may  have  been  for- 
-(ir,^^^    tunate  in  marking  their  boundaries.     In  affording  a  reasonable  time,-^-^ 
>(?t>        ^^3  which  to  complete  a  location,  the  object  is  to  eliminate,  as  far  as    ^^ 
^^^       circumstances  will  permit,  guesswork  in  the  location  of  qu^u^tz  lodes.  i>^^ 
^^^   The  question  is,  what  would  be  a  reasonable  time  for  a"  competent  ^^ 
^*    V>      ^oc^to^  to  have,  under  all  the  circumstances,  in  which  to  complete  f>^ 
^-^^    his  location?     And,  as  I  have  said,  I  think  20  days  would  not  be  i^ 
^■w  •^       unreasonable.    When  the  Red  Jacket  claim  was  properly  located,  on 
..••»-^  ,  ^    the  I2th  of  April,  1881,  this  location  related  back  to  the  date  of  the 
'■  ttvJi  discovery  by  Newbill,  on  the  26th  of  March  preceding.     Gregory  v. 
M        Pershbaker,  73  Cal.   120,   14  Pac.  401.     The  location  of  the  Red 
Jacket  must  be  held,  then,  to  be  prior  to  that  of  the  Mammoth. 
Ou-^  *     *     '^     The  decree  is  affirmed,  with  costs  of  appellee.-^ 

j^Ly  .  ='  But  in  Patterson  v.  Tarbell,  26  Ore.  29,  37  Pac.  76,  79,  Bean,  J.,  foi 
the  court,  said :  "It  would  seem  that  the  discoverer  of  a  lode  or  vein  of  rock 
^T-;  in  place,  bearing  precious  metals,  in  the  absence  of  some  local  rule  of  miners 
>jr\^-)  oi"  legislative  regulations  allowing  some  time  for  exploration,  must  immedi- 
Y  ately  locate  his  claim  by  distinctly  marking  the  same  on  the  ground,  so  that 
e4iyjL'^its  boundaries  can  be  readily  ascertained,  in  order  to  hold  it  against  a  sub- 
yl  ^f'    sequent  valid  location,  peaceably  nwde ;  and,  the  defendants  having  failed  to 


,  ^-..^,  c,,^  sP^  .-^:^,k;  ■.:..zn.'^j:::T 


2   ^f       /^^^^^  MARKING    THE   LOCATION.  ^  ^^^  .jH»  K 

OREGON  KING  MIN.  CO.  v.  BROWN  et  al.  O^M^ 

1902.     Circuit  Court  of  Appeals.     55  C.  C.  A.  626,  119  Fed.  48.  '^.Jt:^' 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District  -—«—•■ 
of  Oregon.  ^i^f 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  Hawley,  (  ^  (f^^ 
District  Judge.  -^•^-^p?^ 

Ross,  Circuit  Judge.-* — The  Oregon  King  Mining  Company,  the€-'"^*'>  *** 
plaintiff  in  error,  commenced  proceedings  in  the  United  States  land  v^* -^--^^a-^/ 
office  at  The  Dalles,  Or.,  to  procure  a  patent  for  a  certain  mining  I ,  "^v 
claim,  called  the  "Silver  King."  At  the  time  of  its  application  theo^-^'^-yn 
company  was  in  possession  of  the  claim,  and  is  so  still.  The  defend-  (^  <»,  * 
ants  in  error  contested  the  application,  and,  in  support  of  their^^  , 
adverse  claim,  commenced,  pursuant  to  the  provisions  of  section  2326^^'^'^ 
of  the  Revised  Statutes  [U.  S.  Comp.  St.  1901,  p.  1430],  the  pres- ^*''^''^ 
ent  action  in  the  court  below  to  determine  the  conflicting  claims  to'fl*^.  *** 
the  ground,  in  which  action  judgment  passed  for  the  plaintiffs  h^fu^ 
therein,  the  defendants  in  error  here.  ku^^^TiC 

The  plaintiff  in  error  claims  the  ground  by  virtue  of  a  location  »  '    -    i 
thereof  made  on  the  24th  day  of  June,  1898,  by  one  G.  M.  Wilson.**^'*^^  V 
The  defendants  in  error  claim  it  under  a  location  made  on  the  3ist^'^*'^*^' 
day  of  January,  1899,  by  T,  J.  Brown  and  Columbus  Friend.     Sub-*^Sr<60  f 
stantially  the  same  ground  is  covered  by  both  locations.    That  madei^-tr't^ 
by  Wilson  he  called  the  "Silver  King  Mining  Claim,"  and  that  made^^,,,,iiiwi. 
by  Brown  and  Friend  was  called  by  them  the  "St.  Elmo  Mining^lJlt^rv-* 
Claim."     The  case  shows  that  Brown,  in  connection  with  Friend,  i^^^^^ 
first  undertook  to  locate  the  ground  in  controversy  on  the  loth  day  .^j^. 
of  March,  1897,  but  it  is  conceded  that  he  did  not  make  any  valid ^ jj„,jj>i 
location  thereof  prior  to  January  31,  1899,  so  that,  if  the  location^    r^ 


comply  with  the  law  in  so  locating  their  claim,  they  are  not  entitled  to  the^ 
possession  of  the  ground  in   dispute  as  against  the  plaintififs,   who  made  a  v 

valid    location.      Requiring   the    discoverer   of    a    mine    to   proceed    diligently  {^  K  ^ 
to  complete  his   location,   without  waiting  to  trace   the  cause   or  strike  the    v  . 
vein  or  lode,  may,  in  some  instances,  work  an  apparent  hardship;  but,  until  ^ ''^'la 
the  matter  is  provided  for  by  some  local  rule  or  regulation,  it  is  better,  what-  ^  x^4».a„'- 
ever  the  efifect  may  be  in  particular  cases,  that  the  rule  should  be  settled, 
and  thus  prevent  as  far  as  possible  the  uncertainty  in  titles  to  mining  claims,  ifXD«vT''" 
and  the  strife  and  litigation  among  miners,  which  would  necessarily  follow       .     _ 
if  the  discoverer  is  allowed  an  indefinite  time  in  which  to  develop  his  lode^*^    4  ' 
or  vein,  which  in  many  instances  would  require  much  time  and  labor  and  a^^rvk.  i 
large    expenditure    of    money.     If,    during    such    development    or    explora-        ^  » 
tion,    he    is    allowed    to    hold    a    floating    grant    to    surface    ground    600    by  {^^r'X  ' 
1,500  feet  in  size,  with  the  right  to  definitely  locate  the  same  as  he  may  sub-  ».  ^-^^ 
sequently  determine,   it  would  create  great   uncertainty   in  mining  titles,   in-       '^'''^ 
crease  litigation,  and  often  defeat  the  purpose  and  object  of  the  law  throwing 


open  the  mining  lands  of  the  country  to  occupation  and  purchase."  ^^>;^     ''/^/e 
^  Parts  of  the  opinion  are  omitted.  ^    j  <pw\j        J^  Q 

*-    Y  "v*?-^!  .  .  '    .  --r 1- — h-T*- — r^^ —    '  J— — --» 


JIj:  152  LOCATION    OF    LODE   AND    PLACER   CLAIMS.  •       /^^^ 

Y^f^  made  by  Wilson  on  June  24,    1898,  was  valid  (to  whose  rights  the 


-i 


plaintiff  in  orror  succeded),  the  plaintiff  in  error  is  entitled  to  the 
property ;  it  having-  entered  into  the  possession  thereof  under  Wil- 
son's location,  and  having  since  retained  possesion  and  worked  and 

^  j         developed  the  claim,  expending     in  such  work  and  development  a 

■'^X  ju    large  sum  of  money.     *     *     * 

V  L^y  Wilson  and  Hubbard  and  Knight  thereafter  from  time  to  time  did 
work  upon  the  ledge,  consisting  of  small  cuts,  and  took  ore  there- 
from, which  upon  assay  showed  considerable  value  in  gold  and  silver, 
and  on  the  24th  day  of  June,  1898,  put  up  at  the  east  end  of  the  Silver 

.-vw  King  claim  a  mound  of  rock  taken  from  one  of  the  cuts  made  by 

^1  •       them,  in  which  they  placed  a  notice  reading  as  follows : 

t  "State  of  Oregon,  County  of  Crook — ss :  Know  all  men  by  these  presents 
that  I,  the  undersigned,  have  this  24th  day  of  June,  1898,  claimed,  by  right  of 
discovery  and  location,   1,500   feet  of   linear  and  horizontal  measurement  in 

^  .  length,  and  600  feet  in  width,  a  quartz  ledge  along  the  vein  or  lode  thereof, 

^'Vi#*<v-t-  1,500  feet  of  said  claim  lying  and  being  in  westerly  direction  from  the  mound 

V  lp>«Ju-*     of  stone  of  the   discovery   monument,   with   all   dips,   spurs,   variations,   and 
A         angles ;   said  claim  being  more  particularly   described   as   follows :      Situated 

■i<V  '"'      on  Sec.  30,  T.  9,  R.  17  E.,  Crook  county,  Oregon,  near  the  Trout  creeks.    This 
claim  shall  be  known  as  the  'Silver  King.'     Also  I  claim  all  water  right  to 
work  the  same. 
iv^d  ■(»•  >  "Discoverer : 

v^     A  "G.  M.  Wilson, 

X^\-t ;     "Witnesses : 

tM^U'  ::J-  F-  Hubbard. 

re  6'  John  Knight." 

D^-^k^jw     *       *       * 

i  *-v'k5m  ^^^  fundamental  questions  contested  at  the  trial  in  the  court 
^_-^.  below,  and  presented  by  the  record  here,  are :  First,  whether  the 
^~^^  Wilson  location,  made  June  24,  1898,  was  properly  marked  upon 
■'^f^'^*^vthe  ground;  and,  second,  if  it  was  not,  whether  a  copy  of  Brown's 
■cJ ,  •''^ ^location  of  January  31,  1899,  was  recorded  as  required  by  the  act  of 
■.  ^,  the  state  of  Oregon  of  October  14,  1898.  Other  questions,  of  a 
^'^■^^  >  minor  character,  also  arose  during  the  trial  in  the  court  below,  which 
'\>-6-"t'  it  will  be  uncessary  to  consider,  in  the  view  we  take  of  the  case. 
H..„^  fL^  The  case  was  tried  with  a  jury.  In  the  answer  of  the  defendant  to 
^cw^ .  the  plaintiff's  complaint,  it  was,  among  other  things,  alleged :  That 
,        Wilson,  having  on  the  24th  day  of  June,  1898,  discovered  therein  a 

,  **^  vein  of  rock  in  place,  carrying  precious  metals,  located  a  claim  called 
^  ^  the  "Silver  King  Mining  Claim,"  embracing  the  vein ;  so  marking  it 
e— ^  that  its  boundaries  could  be  readily  traced ;  the  same  being  "by  the 
^  (,-  erection  of  a  monument  of  stone  at  least  two  feet  in  diameter  at  its 
tv^o^w t?  t>ase,  and  four  feet  in  height,  which  said  monument  was  so  erected 
^   ec.*4,>  and  located  at  the  east  end  center  of  said  Silver  King  mining  claim, 

f>  '  and  at  the  east  end  of  said  ledge,  lead,  lode,  or  vein  of  rock  in  place, 
,,  ^  <  and  by  making  a  cut  into  said  ledge,  lead,  lode,  or  vein,  and  along  the 
\    '■"*      same,  which  said  cut  was  5  ieet  wide,  8  feet  long,  and  6  feet  deep      v 

0S-^-*>-'^    ^^    V*^      YVNWA^t.  V\AO.-0^     'ft>-itfJr    U-a!M     CJ>-Mlp^         '-v.J^  7^  '^ 


■^""^^   y  "^         <)^  CiM>&^^ ,  L7FV»^-«^  p«-tXt^w1  Lv.>Cv~{:  ^"'^^"^^^^'i^t^ZX.   •■ 

tv^c-ev^JlV,  MARKING   THE    LOCATION.  ^°3^  / 

at  the  upper  end  thereof;  and  said  Wilson  then  and  there  placed  in«^o^ 
a  conspicuous  place  in  said  monument,  at  the  east  end  center  of  said  y  ""JZ 
claim,  a  notice  in  words  and  figures"  as  hereinbefore  set  out.  "That,  ^^^"^ 
at  the  point  where  said  monument  was  so  erected,  said  ledge,  lead,  r'*^' 


lode,  or  vein  of  rock  in  place  crops  out,  and  forms  a  ridge  upon  the  ^, 
surface  of  the  ground,  and  is  plainly  visible,  and  can  be  readily  traced  "^^^^ 
and  followed  in  a  straight  line  from  said  point  for  a  distance  of  over  K^^v- 
400  feet  therefrom,  in  a  westerly  direction ;  said  ground  being  barren  Ix^Ji^  *< 
and  devoid  of  timber  or  vegetation,  excepting  only  a  scanty  growth  ^  j.  r . 
of  grass.     That  the  said  G.  M.  Wilson  at  said  time  further  distinctly  j^ 

marked  said  claim  and  the  location  thereof  upon  the  ground,  by  plac-  VuSc*^ 
ing  a  square  stake  at  the  west  end  center  of  said  claim,  and  in  a  line  /SiJt,  ^ 
with  said  ledge,  lead,  lode,  or  vein  of  rock  in  place,  and  an  extension  1 1  l^J^^ 
thereof,  which  said  square  stake  was  firmly  set  in  the  ground,  and  . 

projected  at  least  3  feet  above  the  ground,  and  was  at  least  4  inches   *  *- 7, 
in  diameter,  and  was  so  set  in  the  ground  that  one  of  the  sides  thereof  io  'JUl  1^ 
faced  towards  the  said  monument  of  stone  at  the  east  end  center  of  (^  c-^j^ 
said  claim,  and  said  face  of  said  stake  was  plainly  marked  'Silver .^-^^  / 
King,'  '1,500  feet  easterly,'  and  the  north  face  of  said  stake  was  .     ^^ 
plainly  marked  '300  feet  northerly,'  and  the  south  face  of  said  stake^^.-^  ^^ 
was  plainly  marked  '300  feet  southerly.'    The  said  G.  M.  Wilson  set^       . 
said  stake"^in  a  line  with  the  croppings  of  said  ledge,  lead,  lode,  orW*^*-"*^ 
vein  of  rock  in  place,  and  upon  the  extension  thereof,  and  intended  to  '*7  1, 
set  the  same  1,500  feet  westerly  along  said  ledge,  lead,  lode,  or  vein,  ^[^^juo^ 
and  an  extension  thereof  from  said  monument  of  stone  at  the  east^^^_^^ 
end  center  of  said  claim,  but  miscalculated  the  distance  thereof,  and.j^  ^ 
set  said  stake  1,368  feet  westerly  from  said  east  end  center  monu-^^^[^J|\ 
ment.    That  said  G.  M.  Wilson  further  at  said  time  distinctly  marked  ^  ^      ; 
said  claim  and  the  location  thereof  upon  the  ground,  by  sinking  a  ^^'*''*-*^ 
shaft  upon  the  line  of  said  croppings  of  said  ledge,  lead,  lode,  or    ■ ''^^^ 
vein 'of  rock  in  place,  and  on  a  direct  Hne  between  said  discovery  "".^vy^ 
monument  and  said  west  end  center  stake,   which  said  shaft  was    -^s3Ul 
sunk  to  a  depth  of  nine  feet,  and  at  a  point  about  400  feet  westerly  'li^ 
from  the  east  end  center,  and  also  by  running  a  crosscut  about  50  feet  v  "-^Ir  * 
long,  connecting  with  said  shaft."  t^^■~Ufi.^ 

At  the  trial  the  defendant  (plaintiff  in  error  here)  requested  thee-t.*-;>6 
court  to  instruct  the  jury  that  if  Wilson  marked  his  claim  as  alleged  uJ^ 
in  the  answer,  such  marking  was  a  sufficient  compliance  with  section .j.^^^^^^, 
2324  of  the  Revised  Statutes  of  the  United  States  [U.  S.  Comp..^^^^_^^ 
St.  1901,  p.  1426],  and  that  Wilson's  location,  so  far  as  marking  was^j^j,^.^  ^. 
concerned,  was  therefore  valid,  which  instruction  the  court  below>>  J  * 
refused  to  give,  to  which  action  the  defendant  excepted.  The  court*^ 
below,  in  more  than  one  instance,  against  the  objection  and  exception|0 t>-|T;«  v 
of  the  defendant,  refused  to  determine  the  validity  or  invalidity  of  tAVv^Sk^ 
the  Wilson  location  as  a  matter  of  law,  but  submitted  that  question  ^^^>  * 
to  the  jury  as  one  of  fact,  under  instructions  as  to  the  law  by  which  a4^fo^ 


184  LOCATION    OF    LODE   AND   PLACER    CLAIMS. 

they  should  be  guided  in  determining  the  question.     Concerning  the 
necessary  marking  of  the  claim,  the  court  said  in  its  instructions : 

"The  test  is  not  as  to  whether  the  notice  would  so  describe  the  claim 
that  it  could  be  surveyed.  The  lines  themselves  must  be  indicated  by 
physical  marks  or  monuments,  so  that  one  unfamiliar  with  surveying,  and 
without  the  aid  of  measuring  instruments  or  a  compass,  can  readily  see  by 
the  marks  themselves  just  what  is  claimed;  that  is  to  say,  it  is  my  opinion 
that  it  is  not  sufficient  that  a  surveyor  might  go  and  find  this  claim,  for  the 
reason  that  the  object  of  this  notice  and  marking  is  to  advise  people  who 
are  in  that  country,  and  who  are  not  surveyors,  and  in  cases  where  it  is  not 
practicable  to  have  that  kind  of  service,  to  determine  by  observation,  frorn 
what  has  been  done  upon  the  ground,  that  there  has  been  a  location,  and 
its  boundaries.  The  plain  provision  of  the  statute  which  requires  a  mining 
location  to  be  so  marked  upon  the  ground  that  its  boundaries  can  be  easily 
traced  is  salutary  and  beneficial,  and  is  not  to  be  frittered  away  by  con- 
struction. After  the  discovery,  the  marking  is  the  main  act  of  location. 
Without  it  the  location  is  invalid." 

The  most  of  what  was  there  said  by  the  court  below  was  correct 
and  proper.  The  vice  is  in  that  part  of  the  instruction  in  which  the 
jury  was  clearly  and  distinctly  told  that  the  lines  themselves  must  be 
indicated  by  physical  marks  and  monuments,  so  that  one  unfamiliar 
with  surveying,  and  without  the  aid  of  measuring  instruments,  can 
readily  see  just  what  is  claimed.  The  opinion  entertained  and  given 
effect  by  the  court  below  in  its  rulings  in  respect  to  the  necessity  of 
indicating  the  boundaries  of  the  claim  by  physical  marks  or  monu- 
ments, in  order  to  constitute  a  valid  location,  is  further  shown  by  its 
refusal  to  give  the  following  instructions  requested  by  the  defendant, 
to  which  exceptions  were  reserved : 

"In  regard  to  the  manner  of  marking,  I  call  your  attention  to  the  fact 
that  the  law  does  not  require  the  boundaries  of  the  claim  to  be  marked. 
It  is  the  location  that  must  be  marked,  and  the  law  does  not  say  how  it 
shall  be  marked,  excepting  that  it  must  be  distinctly  marked,  so  that  its 
boundaries  can  be  readily  traced ;  that  is,  the  location  must  be  designated 
by  some  means  placed  upon  the  ground,  so  that  any  one  visiting  the  ground, 
and  endeavoring  to  do  so,  can  readily  trace  the  boundaries  of  the  location 
made." 

"At  the  time  Wilson  attempted  to  make  his  location,  the  law  did  not  pre- 
scribe or  define  what  kind  of  markings  he  should  make,  or  upon  what  part 
of  the  ground  or  claim  he  should  place  the  same.  He  was  not  required  to 
place  such  markings  at  the  corners  of  the  location.  Any  marking  on  the 
ground  claimed,  by  means  of  stakes,  mounds,  and  written  notices,  is  suffi- 
cient, if  thereby  the  boundaries  of  the  location  can  be  readily  traced;  and 
in  this  connection  you  have  a  right  to  take  into  consideration  the  character 
of  the  ground,  and  any  natural  conditions  that  may  aid  the  markings  placed 
upon  the  location  in  determining  its  boundaries,  or  which  may  assist  in  the 
tracing  of  the  boundaries  from  any  markings  which  may  have  been  placed 
upon  the  same." 

The  statute  under  and  by  virtue  of  which  such  locations  are  made 
does  not  say  that  the  boundaries  shall  be  indicated  by  physical  marks 
or  monuments,  nor  in  any  particular  or  designated  manner.    The  re- 


MARKING    THE   LOCATION.  185 

quirement  is  that  the  location  shall  be  so  distinctly  marked  on  the 
ground  as  that  its  boundaries  may  be  readily  traced.  Section  2324, 
Rev.  St.  U.  S.  [U.  S.  Comp.  St.  1901,  p.  1426].  It  has  been  many 
times  decided  that  any  marking  on  the  ground,  whether  by  stakes, 
monuments,  mounds,  or  written  notices,  whereby  the  boundaries  of 
the  location  can  be  readily  traced,  is  sufficient.  'The  latest  decision 
by  the  supreme  court  of  the  United  States  to  that  effect  is  found  in 
the  case  of  McKinley  Creek  Min.  Co.  v.  Alaska  United  Min.  Co.,  183 
U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331,  in  which  the  notice  de- 
scribed each  of  two  locations  as  "a  placer  mining  claim  1,500  feet, 
running  with  the  creek,  and  300  feet  on  each  side  from  center  of 
creek  known  as  'McKinley  Creek,'  in  Porcupine  mining  district." 
"These  notices,"which  it  appears  were  written  upon  a  stump  or  snag 
in  the  creek,  said  Mr.  Justice  McKenna,  delivering  the  unanimous 
opinion  of  the  supreme  court,  "constituted  a  sufficient  location.  The 
creek  was  identified,  and  between  it  and  the  stump  there  was  a 
definite  relation,  which,  combined  with  the  measurements,  enabled 
the  boundaries  of  the  claim  to  be  readily  traced." 

In  Gleeson  v.  Mining  Co.,  13  Nev.  442,  462,  the  court,  speaking 
through  Beatty,  J.,  said : 

"The  object  of  the  law  in  requiring  the  location  to  be  marked  on  the 
ground  is  to  fix  the  claim,  to  prevent  floating  or  swinging,  so  that  those 
who  in  good  faith  are  looking  for  unoccupied  ground  in  the  vicinity  of 
previous  locations  may  be  enabled  to  ascertain  exactly  what  has  been  appro- 
priated, in  order  to  make  their  locations  upon  the  residue.  We  concede 
that  the  provisions  of  the  law  designed  for  the  attainment  of  this  object  are 
most  important  and  beneficent,  and  that  they  ought  not  to  be  frittered  away 
by  construction.  But  it  must  be  remembered  that  the  law  does  not,  in  ex- 
press terms,  require  the  boundaries  to  be  marked.  It  requires  the  location 
to  be  so  marked  that  its  boundaries  can  be  readily  traced.  Stakes  at  the 
corners  do  not  mark  the  boundaries.  They  are  only  a  means  by  which  the 
boundaries  may  be  traced.  Why  not,  then,  allow  the  same  efficacy  to  the 
marking  of  a  center  line  in  a  district,  where  the  extent  of  a  claim  on  each 
side  of  the  center  line  is  established  by  the  local  rules?  It  would  be  safer, 
and  therefore  better,  to  comply  with  the  recommendations  of  the  land  office, 
and  erect  stakes  at  the  corners  of  the  claim;  but,  if  the  grand  object  of  the 
claim  is  attained  by  the  marking  of  a  center  line,  we  can  see  no  reason 
why  it  should  not  be  allowed  to  be  sufficient.  In  this  case  the  locators  of 
the  Paymaster  marked  the  center  line  of  their  claim  on  the  10th  of  October, 
1872.  No  miner,  no  man  of  common  intelligence  acquainted  with  the  customs 
of  the  country,  could  have  gone  on  the  ground  and  seen  the  monument,  no- 
tice, and  work  at  the  discovery  point,  and  the  two  stakes,  one  three  hundred 
feet  southeast  of  the  location  monument,  marked,  'Southeasterly  stake  of 
Paymaster,'  the  other  twelve  hundred  feet  northwest  of  the  location  monu- 
ment, and  marked,  'Northwesterly  stake  of  Paymaster,'  in  a  line  with  the 
croppings  and  with  the  discovery  point,  without  seeing  at  a  glance  that  they 
marked  the  center  line  of  the  claim.  By  the  rules  of  the  district  and  the 
law/s  of  the  land,  he  would  have  been  informed  that  the  boundaries  of  the 
claim  were  formed  by  lines  parallel  to  the  center  line,  and  three  hundred 
feet  distant  therefrom,  and  by  end  lines  at  right  angles  thereto.  With  this 
knowledge,  he  could  easily  have  traced  the  boundaries,  and,  if  such  was  his 
wish,  ascertained  exactly  where  he  could  locate  with  safety." 


l86  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

Judge  Sawyer,  in  instructing  the  jury  in  the  case  of  North  Noon- 
day Min.  Co.  V.  Orient  Min.  Co.  (C.  C.)  ii  Fed.  125,  6  Sawy.  299, 
310,  upon  the  point  in  question,  said : 

"To  make  a  valid  location  under  the  statute,  it  is  required  that  'the  location 
must  be  distinctly  marked  on  the  ground,  so  that  its  boundaries  can  be 
readily  traced' ;  but  the  law  does  not  define  or  prescribe  what  kind  of  marks 
shall  be  made,  or  upon  what  part  of  the  ground  claimed  they  shall  be  placed. 
Any  marking  on  the  ground  claimed,  by  stakes  and  mounds  and  written  no- 
tices, whereby  the  boundaries  of  the  claim  located  can  be  readily  traced,  is 
sufficient.  If  the  center  line  of  a  location  of  a  lode  claim  lengthwise  along 
the  lode  be  marked  by  a  prominent  stake  or  monument  at  each  end  thereof, 
upon  one  or  both  of  which  is  placed  a  written  notice  showing  that  the  locator 
claims  the  length  of  said  line  upon  the  lode  from  stake  to  stake,  and  a  cer- 
tain specified  number  of  feet  in  width  upon  each  side  of  such  line,  such  loca- 
tion of  the  claim  is  so  marked  that  the  boundaries  may  be  readily  traced, 
and,  so  far  as  the  marking  of  the  location  is  concerned,  is  a  sufficient  com- 
pliance with  the  law." 

In  speaking  to  the  same  point,  Judge  Hawley,  in  the  case  of  Book 
V.  Mining  Co.  (C.  C.)  58  Fed.  106,  113,  said: 

"All  the  authorities  agree  that  any  marking  on  the  ground  by  stakes, 
monuments,  mounds,  and  written  notices,  whereby  the  boundaries  of  the 
location  can  be  readily  traced,  is  sufficient." 

See,  also,  Haws  v.  Mining  Co.,  160  U.  S.  303,  318,  16  Sup.  Ct. 
282,  40  L.  Ed.  436;  Southern  Cross  Gold  &  Silver  Min.  Co.  v. 
Europa  Min.  Co.,  15  Nev.  383 ;  Jupiter  Min.  Co.  v.  Bodie  Consol. 
Min.  Co.  (C.  C.)  II  Fed.  667;  Hauswirth  v.  Butcher,  4  Mont.  308, 
I  Pac.  714;  Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728;  Pollard  v, 
Shively,  5  Colo.  309;. Filers  v.  Boatman,  3  Utah,  159,  2  Pac.  66; 
Du  Prat  V.  James,  65  Cal.  555,  4  Pac.  562;  Taylor  v.  Middleton,  ^y 
Cal.  656,  8  Pac.  594. 

The  error  committed  by  the  court  below,  above  indicated,  necessi- 
tating the  reversal  of  the  judgment  and  the  remanding  of  the  case 
for  a  new  trial,  it  becomes  necessary  to  decide  but  one  other  of  the 
questions  presented  by  the  appeal ;  and  that  is  whether  or  not  it  be 
necessary  that  the  copy  of  the  notice  of  location  required  by  the 
Oregon  statute  to  be  recorded  be  a  literal  and  exact  copy  of  the 
notice  posted.  We  think  it  clear  that  it  need  only  be  a  substantial 
copy.  Gird  v.  Oil  Co.  (C.  C.)  60  Fed.  531;  Myers  v.  Spooner,  55 
Cal.  257;  Doe  v.  Mining  Co.,  17  C.  C.  A.  190,  70  Fed.  457;  Metcalf 
V.  Prescott  (Mont.)  25  Pac.  1038;  Preston  v.  Hunter,  15  C.  C.  A. 
148,  67  Fed.  996;  Carter  v.  Bacigalupi  (Cal)  23  Pac.  363;  Deeney 
V.  Milling  Co.  (N.  M.)  67  Pac.  724;  Lindl.  Mines,  §  381;  Bar- 
ringer  &  A.  Mines  &  M.  p.  253. 

The  judgment  is  reversed,  and  cause  remanded  for  a  new  trial. 


£^  U^  ftv  ,    ^l-*-^  v-^.^r  uv^^tHv  I— ^  iix  cs-Z/^-f-^   -Xa  ^''^SI^  -  Ul  co-^ 

MARKING   THE    LOCATION.  iS/  j-'     '-'^^* 

BEALS  V.  CONE  et  al.  Z.  i^> 

J.  ' 

1900.     Supreme  Court  of  Colorado.    27  Colo.  473,  62  Pac.  948.^"'^-'*^' 


/  '*- 


Action  by  appellant,  as  plaintiff  in  the  court  below,  as  the  owner  \    . 
of  the  Tecumseh  lode,  in  support  of  his  adverse  against  the  ap- 
plication of  appellees,  as  defendants,  for  patent  to  that  portion  of  > 
the  Ophir  lode  in  conflict  with  the  Tecumseh.    From  a  judgment    ,,  - 
in  favor  of  defendants,  plaintiff  appeals.     Affirmed.                           '    '  '       ^ 
Gabbert,  J.-*^ — *     *     *                                                                         2p6A.^a- 
The  southwest  corner  post  of  the  Tecumseh  was  not  placed  where  "x/j. 
it  fell  by  right,  because  it  was  claimed  that  point  was  impracticable.  ^  ''^  *  ' 
The  evidence  estabhshes  that  this  corner  fell  upon  a  railroad  em-tA*H^ 
bankment.    It  is  claimed  by  counsel  for  appellant  that  the  court  in-A^^^  ^ 
structed  the  jury  to  the  effect  that  unless  it  was  found  from  the  evi-  ^^ 
dence  that  the  true  southwest  corner  of  the  Tecumseh  fell  upon  pre-  V^  p 
cipitous  ground,  and  within  the  rails  of  the  railroad  occupying  such  4A4»^^^^ 
embankment,  or  so  near  to  one  or  the  other  of  them  that  the  erection  j^v^^^./- 
of  a  post  at  that  point  would  be  interfered  with  by  the  passage  of      ^^ 
trains,  it  was  the  duty  of  appellant  to  set  his  post  at  the  true  corner.*^'tA,-^j 
The  instruction  referred  to  is  not  happily  worded,  but  it  must  be  T^  ^    u^ 
read  as  a  whole,  and  also  in  connection  with  the  one  immediat^y.^^^^^^^^^^^^ 
following,  from  which  it  is  apparent  that  the  court  directed  the  juryy**"^^ 
that  appellant  was  required  to  place  the  southwest  corner  post  of  the^-^A,*^-*^ 
Tecumseh  lode  at  its  true  point,  unless  the  evidence  established  thatUi-sjJf^ 
such  point  fell  where  it  was  impracticable  to  maintain  it.  Aside  from  ^\^>^ 
these  considerations,  appellant  is  not  in  a  position  to  complain  of  J^^^^^^^ 
this  instruction.    It  does  not  appear  that  the  erection  of  a  stake  at^_^^^^^^^^ 
the  true  corner  would  have  been  interfered  with  by  the  passage  of''^''"'^ 
trains.   The  most  that  can  be  said  is  that  the  true  corner  fell  upon  a  ^^-*^« 
railroad  embankment  12  to  15  feet  in  height.   The  statute  provides  j^^^^ 
that  when  one  or  more  of  the  posts  which  must  be  erectedfor  the^_^__^^^^^ 
purpose  of  marking  the  surface  boundaries  of  a  mining  claim  "fall  ^ 
by  right  upon  precipitous  ground,  where  the  proper  placing  of  it  is  <i^^4.A^.■^ 
impracticable,  or  dangerous  to  life  or  limb,  it  shall  be  legal  and _ valid  ^Xs>3|' 
to  place  any  such  post  at  the  nearest  practicable  point,   suitably  ^^«^ 
marked,  to  designate  the  proper  place."   Section  3153,  2  Mills'  Ann.  i-*-^«^ 
St   These  provisions  concerning  the  placing  of  witness  stakes  cannot  ^-e*>*t( 
be  invoked  when  the  setting  of  a  stake  at  the  true  corner  is  merely,^,,..^   ^^ 
difficuh  or  inconvenient.   Croesus  Mining,  ^Idling  &  Smelting  Co.  v..  1 
Colorado  Land  &  Mineral  Co.  (C.  C.)  19  Fed.  78;  Taylor  v.  Paren-^^*^ 
teau,  23  Colo.  368,  48  Pac.  505.    It  certainly  was  not  dangerous  to^j^^\^ 
life  or  limb  to  set  this  post  at  its  true  point  upon  a  railroad  eni- 
bankment,  and  it  does  not  appear  that  to  have  done  so  was  impracti-r  <^*  C^ 
cable ;  so  that,  if  the  instruction  was  susceptible  of  the  construction  j-^^  | 

^a  Parts  of  the  opinion  are  omitted.    For  some  of  such  parts  see  ante  p.  (>^»^|- 


l88  LOCATION    OF   LODE   AND   PLACER    CLAIMS. 

claimed,  it  was  correct,  in  that  the  post  should  have  been  erected  at 
its  true  point,  unless  that  point  was  in  such  proximity  to  the  rails 
that  it  would  be  interfered  with  by  the  passage  of  trains.  In  this 
connection,  we  notice  another  point,  although  we  do  not  wish  to  be 
understood  as  definitely  deciding  it.  The  statute  above  quoted  pro- 
vides that,  where  the  conditions  exist  which  authorize  the  placing  of 
a  boundary  post  at  a  place  other  than  where  by  right  it  belongs,  it 
shall  be  "suitably  marked  to  designate  the  proper  place."  This  re-j^ 
quirement  is  for  the  purpose  of  designating  where  the  true  point  or 
corner  is,  which  is  evidenced  by  such  post,  and  that  it  shall  be  so 
marked  as  to  impart  this  information.  In  this  case  it  appears  that 
the  only  marks  upon  the  southwest  corner  post  of  the  Tecumseh 

were  "W.  C. 9005."  These  marks  certainly  did  not  indicate, 

by  either  course  or  distance,  w^here  the  true  southwest  corner  of  the 
claim  would  be  found.     *     *     * 

The  judgment  of  the  district  court  is  affirmed.   Affirmed. 


,   5^^Lc..^      BROCKBANK  v.  ALBION  MIN.  CO. 

H-fec-^  1905.     Supreme  Court  of  Utah.     29  Utah  439,  82  Pac.  473. 

^2^  Action  by  Joseph  P.  Brockbank  against  the  Albion  Mining  Com- 
.  Mf^, pany.  From  a  judgment  for  defendant,  plaintiff  appeals.  Reversed, 
"j  "^^  Bartch,  C.  J.— r^This  is  an  action  to  determine  the  adverse  claim 
"uvwj,  of  the  parties  to  the  right  of  possession  of  certain  mining  ground 
j^^.  situate  in  Little  Cottonwood  Mining  District,  Salt  Lake  county, 
,J^  Utah.  The  plaintiff  claims  to  be  the  owner  and  entitled  to  the  pos- 
"^-^^  session  of  the  Homestake  No.  i  mining  claim,  which  was  located 
y:7  '■  January  i,  1900.  The  defendant  claims  to  be  the  owner  and  entitled 
J  )  to  the  possession  of  the  Omega  mining  claim,  located  October  22, 
1902,  the  Alice  and  Alice  No.  i,  both  located  January  2,  1903,  and 
■v^  the  Albion  No.  8,  located  June  30,  1903.  The  area  included  within 
^Lc^r.-'-the  boundaries  of  the  four  claims  of  the  defendant  includes  all  of  the 

^£^^  ground  embraced  within  the  boundary  lines  of  the  Homestake  No. 
,  y^^K  j^  ^j^^  upon  the  defendant,  on  March  10,  1904,  filing  an  application 
^*j^>Yiov  a  patent  for  its  claims  in  the  United  States  Land  Office  of  this 
}  \  '^  district,  the  plaintiff",  within  the  time  required  by  law,  filed  the  ad- 
J^  verse  claim  upon  which  this  suit  has  been  based.     At  the  trial  the 

•^^  court  found  and  decided  that  the  ground  in  dispute,  subject  to  the 
I  ^.fiO  paramount  title  of  the  United  States,  belonged  to  the  defendant,  and, 
^,_^ »     dismissed  the  plaintiff's  complaint. 

1^  )  The  appellant,  among  other  things,  contends  that  the  court  erred 
5  H  in  finding  that  neither  at  the  time  of  making  the  location  nor  at 
> ,  any  other  time  since  were  the  boundaries  of  the  Homestake  No.  i 

s^  marked  by  posts  or  monuments  so  as  to  indicate  the  boundaries  of 
i^*V      the  claim.    We  think  this  point  is  well  taken.     Such  a  finding  does 

'*-^^^  U^-ft^i^   «-«<^A^   kXa5^^  "^^  ^a*M-vUnr-  M.  <Io 

Avv^  ^  CyJ?,  «->^  Ot-0,  L  jLv^'6;«J^  JU.«I^U^ 


^  7  ' 

MARKING   THE    LOCATION.  189 

not  appear  to  be  warranted  by  the  evidence.  While  the  boundaries 
were  not  fully  marked  on  the  day  the  location  notice  was  posted,  be- 
cause, the  snow  then  being  from  10  to  15  feet  deep,  it  was  imprac- 
ticable to  do  so,  still,  the  notice  having  contained  a  full  description 
of  the  claim  by  courses  and  distances  from  the  discovery  monument, 
where  it  was  posted,  and  the  claim  being  a  relocation  of  one  cover- 
ing the  same  ground,  the  corners  of  which  were  yet  substantially  in 
place,  the  location  was  at  least  sufficient  to  entitle  the  locator  to  per- 
fect it  within  a  reasonable  time,  or  before  other  parties  had  acquired 
rights  in  the  ground.  When  afterwards,  before  any  rights  of  the 
defendant  or  adverse  rights  intervened,  the  plaintiff  had  the  old 
monuments  repaired,  and  the  boundaries  marked,  with  a  post  3 
inches  tliick  and  about  4  feet  high,  set  in  a  stone  monument  at  each 
corner,  the  location  became  complete,  and  subsequent  locators  were 
bound  to  take  notice  of  the  plaintiff's  rights.  Corner  monuments 
having  formerly  been  placed  on  the  ground,  and  their  locations  cor- 
responding with  the  calls  in  the  notice,  the  locator,  under  the  cir- 
cumstances, had  a  right  to  adopt  those  monuments  by  repairing  or 
reconstructing  them,  as  was  necessary,  and  the  notice  of  location 
could  properly  be  made  to  refer  to  the  boundary  monuments  or 
stakes  of  the  previous  location,  i  Lindley  on  Mines,  §  408 ;  Conway 
V.  Hart,  129  Cal.  480,  62  Pac.  44.  And  where  a  discovery  of  mineral 
has  been  made,  and  a  proper  location  notice  filed,  then,  if  the  bound- 
aries are  marked  on  the  ground,  before  intervening  rights  have  ac- 
crued, the  claim  will  be  valid.  The  locator,  however,  delays  at  his 
peril,  since  thereby  he  assumes  the  risk  of  intervening  rights  of  third 
parties,  i  Lindley  on  Mines,  §§  330,  339 ;  i  Snyder  on  Mines,  §  393  ; 
Erwin  v.  Perego,  93  Fed.  608,  35  C.  C.  A.  482 ;  Jupiter  Min.  Co.  v. 
Bodie  Con.  Min.  Co.  (C.  C.)  11  Fed.  666;  C.  P.  Gold-Min.  Co.  v. 
Crismon  (Or.)  65  Pac.  87;  North  Noonday  Min.  Co.  v.  Orient  Min. 
Co.  (C.  C.)  6  Sawy.  299,  i  Fed.  522;  McGinnis  v.  Egbert,  8  Colo. 
41,  5  Pac.  652 ;  Warnock  v.  De  Witt,  11  Utah,  324,  40  Pac.  205.  We 
are  of  the  opinion  that  at  the  time  the  mining  claims  of  the  defendant 
were  located  the  Homestake  No.  i  claim  was  sufficiently  marked  on 
the  ground,  and  was  then  a  valid  claim,  and  that  the  court  erred  in 
its  findings  to  the  contrary. 

We  are  also  of  the  opinion  that,  under  the  evidence  as  it  now 
appears  in  the  record,  the  court  erred  in  finding  that  the  annnual  as- 
sessment work  was  not  performed  on  the  Homestake  No.  i  claim 
for  the  years  1901  and  1902,  but,  as  the  case  must  be  reversed  and 
remanded  for  a  new  trial,  we  do  not  deem  it  advisable  to  discuss 
any  question  relating  to  the  findings  on  the  subject  of  assessment 
work,  since  other  and  different  evidence  may  be  introduced  at  the 
next  trial. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  directions 
to  th€  court  below  to  grant  a  new  trial ;  the  costs  to  abide  the  final 
result. 


«'<-t-vw<f.X       '""•'^    ^  "     i^U'*'^*^ 


-J:^ 


190  LOCATION    OF   LODE   AND   PLACER    CLAIMS.  ■  ^ 

'\So     BERGQUIST  v.  WEST  VIRGINIA-WYOMING  COPPER  CO. 

^^  ^»^  (See  post,  p.  240,  for  a  report  of  the  case.)  ^ ^ 

'^t^^    WEST    GRANITE  MOUNTAIN  MIN.  CO.  v.  GRANITE 
7  M.-V  MOUNTAIN  MIN.  CO. 

.  »       ^    1888.     Supreme  Court  of  Montana.     7  Mont.  356,  17  Pac.  547. 

»..4^-/       McLeary,  J. — This  action  was  brought  in  the  district  court,  to 

determine  the  right  to  a  small  piece  of  mining  ground,  which,  by 

the  plaintiff,  is  called  the  "Fraction,"  and  by  the  defendant,  the 

^X■• '     "Harrison"  mining  claim.    There  was  a  jury  trial  in  the  court  below, 

l^tlC^  ^nd  upon  the  general  verdict  and  the  special  findings  the  court  ren- 

^^^j    'dered  judgment  in  favor  of  the  plaintiff,  from  which  the  defendant 

.         appeals  to  this  court.    The  only  exception  presented  in  the  record  and 

^  /-  *-•        briefs  of  counsel  is  to  the  action  of  the  court  in  denying  the  motion 

of  the  defendant  to  strike  out  all  evidence  on  the  part  of  the  plaintiff 

--y  yi^    ^"  regard  to  the  location  of  the  "Fraction"  lode,  on  the  ground  that 

/      I'^'the  evidence  showed  no  valid  location.     The  appellant  claims  that 

"^"f^^^    the  plaintiff  never  acquired  any  right  to  the  "Fraction"  lode  claim, 

.y^  because  the  boundaries  of  said  claim  were  not  marked  on  the  ground 

g^,_^    contained  therein,  so  that  they  could  be  readily  traced.     The  record 

^r     shows  that  whatever  marking  of  the  boundaries  of  the  "Fraction" 

^^-*^•«i    lode  claim  was  done,  was  by  stakes  set  for  corners  on  adjoining 

-ov^      claims,  the  "Rattlesnake,"  "James  G.  Blaine,"  "Granite  ^Mountain 

;^^_,^       Extension,"  and  the  "Sunnyside,"  and  not  on  the  claim  itself. 

■  ^        The  matter  is,  then,  narrowed  down  to  this :  whether  or  not  such 

{^stH  -^  ^  marking  of  the  boundaries  as  this  complies  with  the  act  of  congress. 

tl^^^      Section  2324,  Rev.  St.  U.  S.,  says :  "A  location  must  be  distinctly 

k  iry      marked  on  the  ground,  so  that  its  boundaries  can  be  readily  traced." 

jr^^      All  that  the  statute  requires,  in  our  opinion,  is  that  the  land  should 

C/"       be  so  marked  upon  the  ground  that  the  boundaries  can  be  readily 

ME^W/   traced.    This  does  not  mean  that  the  marks  shall  be  upon  the  actual 

'    ground  included  within  the  mining  claim,  but  they  may  be  upon  any 

ground  adjoining,  near  enough  to  readily  designate  the  boundaries. 

It  was  certainly  never  intended  that  a  slight  mistake  in  the  setting 

of  stakes  should  invalidate  a  location.    All  that  was  intended  is  that 

a  person  seeking  to  make  a  subsequent  location  could  go  upon  the 

ground  referred  to,  and  from  the  marks  made  find  the  boundaries 

-^  i.-**:^  of  the  claim.     Glecson  v.  Mining  Co.,  13  Nev.  462,  463;  Anderson 

*^  ^     v.  Black,  70  Cal.  230,  1 1  Pac.  Rep.  700 ;  Taylor  v.  Middlefon,  67  Cal. 

^   ^    657,  8  Pac.  Rep.  594 ;  Mining  Co.  v.  Mining  Co.,  9  Min.  R.  538,  539. 

'^\n     '■    There  was  an  entirely  parallel  case  decided  by  the  Supreme  Court  of 

California  on  the  30th  of  June,  1887.    The  learned  justice  delivering 

1*^    t      the  opinion  in  that  case  says :  "It  seems  to  be  admitted  that  the  loca- 

U:*,fC\-^  tion  would  have  been  a  good  one  if  all  the  ground  covered  by  it  had 

j^  _  ^      been  vacant,  as  then  it  would  have  been  so  marked  out  that  its  boun- 


y^,,,^  Ut  <L-^  w*w  J^>-vw'  Uruy4<^  ^-?Trvi.w^  p^-ftnjjsi^  .-      '  • 

T* — yT^     f  MARKIKG   THE   LOCATIO^^,  IQI 

daries  could  be  readily  traced.    But  it  is  insisted  that  when  Stoughton  ^*-\  •-> .  '''^'^- 
placed  his  monuments  upon  adjoining  claims,  which  were  held  under  j'^^  of-  0  • 
valid  locations,  he  was  a  trespasser,  and  could  acquire  no  rights  jc-aij    v- 
by  such  trespassing;  that  his  acts  were  void,  and  he  could  claim  noth-     '^ 
ing  by  reason  of  the  monuments  so  placed ;  that  the  parcel  of  land  in  4-0-*^ 
controversy  was  not  so  marked  on  the  ground  that  its  boundaries  ■  -,.  O^  Wr 
could  be  readily  traced,  and  therefore  his  attempted  location  was .  j   v..'jjxx> 
wholly  invalid.     If  this  be  so,  then  it  must  follow  that  if  the  locator  ' i  '-'  j, 

of  a  mining  claim  should  happen,  through  mistake  or  otherwise,  to  ^-^W^  ^o-^ 
place  some  of  the  monuments  necessary  to  mark  out  his  boundaries  fx>^  CwrvJ 
upon  another's  claim,  though  they  might  be  over  the  line  only  a  yard  ^^  }■ 

or  a  rod,  still  his  location  must  wholly  fail.    We  do  not  think  this  is  "^^ 
or  ought  to  be  the  law.     It  is  familiar  history  in  mining  districts  v,.^^w-tK 
that  claims  have  often  been  found  to  overlap  one  another  to  a  greater  fvui  j  ^-^^ 
or  less  extent.    In  such  cases  the  question  as  to  the  ground  covered  1,q--ij^,J^ 
by  two  locations  has  been:  Which  location  was  prior  in  time  and 
superior  in  right?     And  it  has  never  been  held,  so  far  as  we  know,   ^^^^^^^^"^^ 
that  either  of  them  must  wholly  fail  because  of  the  conflict.    On  the  ''•tf^^-^  j 
contrary,  in  so  far  as  the  ground  taken  was  vacant,  each  location,  if  ^-«^    * 
properly  made  in  other  respects,  has  been  considered  to  be  valid  and   ^  ft^-^^. 
sufficient."     Doe  v.  Tyley,  14  Pac.  Rep.  376.  ^     ' '.  "' 

The  case  which  would  seem  most  nearly  to  support  the  position   Aa  i>Tv 
of  the  appellant  is  one  decided  by  this  court  in  1882.     In  that  case  tAj*tfv\ 
the  boundaries,  as  marked  upon  the  ground,  made  the  claim  2,000  -rvJi, 


feet  in  length  ;  and  Air.  Chief  Justice  Wade,  in  delivering  the  opinion  Ui^^JS^  5 
of  the  court,  says:  "Before  there  can  be  a  valid  location  there  must  _^_^  Cm*^ 
be  a  discovery.    Taking  the  discovery  as  the  initial  point,  the  bound-  ^ 

aries  must  be  so  definite  and  certain  as  that  they  can  be  readily  U/^^S-^ 
traced ;  and  they  must  be  within  the  limits  authorized  by  law,  other-}  ||  Ci.c|r^ 
wise  their  purpose  and  object  would  be  defeated.    The  area  bounded^  ^.^  £  (^^ 
by  a  location  must  be  within  the  limits  of  the  grant.     No  one  would  ^'   ^ 
be  required  to  look  outside  of  such  limits  for  the  boundaries  of  a.^ft^^-^' 
location.    Boundaries  beyond  the  maximum  extent  of  location  would  ;C*,^  |  ( 
not  impart  notice,  and  would  be  equivalent  to  no  boundaries  at  all.     ^  ^  ,.     - 
A  discovery  entitles  the  person  making  the  same  to  a  mining  claim  ^ 
embracing  the  discovery,  not  to  exceed  one  thousand  five  hundred  Vvn\- 
feet  in  length  by  six  hundred  feet  in  width.     Within  these  limits,  if  ^  ^^s^  L 
the  boundaries  are  properly  marked  on  the  ground,  and  the  location^^P^^^^  ^ 
properly  made  and  recorded,  the  grant  of  the  government  attaches,.        »       ^^ 
and  third  persons  must  take  notice.    But  they  would  not  be  required.  5/  ^ 
to  look  for  stakes  or  boundaries  outside  of  or  beyond  the  utmost  i^  jo  'Js\. 
limits   of    location   as   authorized    by   the    statute."      Hauszuirth   v. «-    < 
Butcher,  4  Mont.  307,  308,   i   Pac.   Rep.  714.     But  in  that  case,  ' 
the  stakes  were  set  beyond  the  limits  fixed  by  the  statute.     In  thisj^^    '      \ 
case  they  were   set  within  the  statutory  limits,  but  on  adjoining.,,         '' 
claims.    The  claim  located  is  a  small  fraction, — 300  feet  long  and  600    _ 


feet  wide,  surrounded  by  other  locations, — and  it  appears  that  "the  ^^^^^ 


A     (^C^-^C^^  WaJ^    V4s»^  WAJ:^  :(U    &-^  tvo^  t^'^   ^^LX^>^Jt 


^Z^    ,^H^-<^^.^y^^7S Q^ (11,       ^c^  /^  fO**.  fb^ 

'  .   192  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 


t^         location  was  marked  on  the  ground,  so  that  the  boundaries  can  be 
/  readily  traced."    This  is  all  that  is  required.    There  is  no  error  ap- 

) '^'C^jivparent  from  th«  record,  and  the  judgment  is  affirmed.  , 

<r^  fU^  (...xfe^jl/  c>,y7t^  ' '-      ■  '-^^  -^'^  o«  ly^  •''^ 


^'^^     McKINLEY  CREEK  MINING  COMPANY 
v^M^  UNITED  MINING  COMPANY  et  al. 

^  1902.     Supreme  Court  of  the  United  States. 

f^    ,  183  U.  S.  563,  22  Sup.  Ct.  84. 

.    ,\,  Appeal  from  a  judgment  entered  on  a  verdict  for  the  plaintiffs  in 

'JTw^vC/   an  equity  case  to  establish  title  to  placer  mining  claims.    Affirmed. 
tftCf  Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. -^   *  *  * 

^t*l)       ^^  ^^^  P^^^  °^  *^^^  plaintiffs  (appellees)  the  evidence  tended  to 

.'  .  show  that  Dan.  Sutherland,  James  Hanson,  William  Chisholm,  and 
r^..>»  ^'^S  Jack  Dalton,  who  compose  the  appellee  company,  and  Peter  Hall,  and 
t,^  ^.      one  Hawes,  and  C.  P.  Cahoon,  were  working  at  Pleasant  camp  in 

'^        Alaska  for  William  Chisholm  on  and  prior  to  October,  1898.    Pros- 
>        pecting  on  the  river  Porcupine  was  resolved  on  to  be  done  by  Han- 
son, Sutherland,  and  Cahoon,  and  the  following  power  of  attorney 
'  -->      was  sfiven  to  Cahoon: 


'S' 


.   I  Know    all    men    by    these    presents    that    Peter    Hall,    William    Chisholm, 

."rtwi..  William  S.  Hawes,  of  Pleasant  Camp,  British  Columbia,  have  made,  con- 
it  *  ^  stituted,  and  appointed,  and  by  these  presents  do  make,  constitute,  and  appoint, 
'  '  C.  P.  Cahoon,  of  Pleasant  Camp,  British  Columbia,  our  true  and  lawful 
■|C.^  attorney,  for  us  and  in  our  names,  place,  and  stead,  to  locate  a  mining  claim 
vs  >  in  the  territory  of  Alaska. 

*^^'^  In  testimony  whereof  we  have  hereunto  set  our  hands  and  seal  this  4th 

-f  day  of  Oct.,  A.  D.  1898. 

a_^v       /       )  Peter  Hall.  [seal.] 

J^r>^U<«^.  -y^j^    ^    Chisholm.       [seal.] 

■^  *-vr  Wm.  S.  Hawes.  [seal.] 

I        .f       Signed,  sealed  and  delivered  in  the  presence  of — 
^  ^*-  °  Dan  Sutherland. 

A^*^-  J.  Hanson. 

^^  / 

4M^twv«f  Provisions  were  furnished  the  party,  and  they  started  out  on  the 
rjV  4th  of  October,  1898,  and  met  on  the  creek  (subsequently  given 
^^  the  name  of  McKinley)  certain  members  of  the  appellant  company. 
w*  Gold  was  discovered,  and  Cahoon  wrote  notices  of  location  for  Chis- 
|-^^^^  holm  and  Hall  upon  a  snag  or  stump  in  the  creek,  making  their 
"^^^^  claims  contiguous,  and  afterward  reported  that  he  had  done  so,  say- 
ing that  he  had  staked  Chisholm  first  and  Hall  next.  Chisholm 
;  and  Hall  went  to  the  claims  about  the  20th  of  October,  and  cut 

^^      trails  to  them,  and  did  other  work  upon  them ;  and  at  that  time  copied 

*>  fywto^V" '^'^^  Statement  of  facts  and  parts  of  the  opinion  are  omitted. 


MARKING   THE   LOCATION.  m^  JT^ 

the  notices  of  location  and  had  them  recorded.     The  notices,  with  ''"'^  "^ 
their  indorsements,  were  introduced  in  evidence.  '  -h.^^x^  t 

The  testimony  was  given  by  several  witnesses  and  in  great  detail,  U^rX^ 
and  it  was  opposed  at  about  all  points  by  testimony  of  several  wit-  ^'^ 
nesses,  including  Gaboon ;  and  as  to  who  first  discovered  gold  there  ""  '""'^ 
was  a  decided  conflict  whether  Sutherland  did,  who  is  one  of  the^  ^^-^ 
appellee  company,  or  whether  Hackley  did,  under  a  location  by  whom  C  C^(^ 
the  appellant  company  claims.    Also  a  conflict  as  to  whether  Hackley  a^  ^ 
protested  when  Gaboon  wrote  the  notices  of  location  for  Ghisholm  ]  . 
and  Hall,  and  whether  Gaboon  promised  to  take  them  down  and  "'*    "^ 
authorized  Hackley  to  do  so,  and,  upon  his  declining,  authorized  <^'' -c-U 
Lewis,  one  of  the  appellant  company,  to  take  them  down  and  relocate  c^^JL 
Ghisholm  and  Hall  further  up  the  creek,  and  whether  Lewis  did  so.  ^^T^ 

I.  It  will  be  observed  that  the  main  controversy  of  fact  between  ^'"/^  ^ 
the  parties  was  as  to  who  made  the  first  discovery  of  gold, — Hackley  |[;^'J^^ 
or  Sutherland.  On  this  testimony  appellants  base  three  contentions,  L-o-^ 
to  which,  they  claim,  the  instructions  asked  by  them  at  the  trial  /_.  ^kjh 
court  were  addressed ;    *    *    *  jl 

(2)  That  the  locations  relied  on  by  appellees  were  invalid  because  ^^"^^ 
they  were  not  "distinctly  marked  on  the  ground,  or  otherwise  desig-  ^*4J)^ , 
nated  as  required  by  law."  k>c>-^t 

(3)  That  the  citizenship  of  Ghisholm  and  Hall  was  put  at  issue  by  f 
the  pleadings,  and  no  evidence  was  ofifered  to  establish  it,  but,  on  the  .7 
contrary,  the  power  of  attorney  under  which  Gaboon  acted  represents  ^^"'^^  ^ 
them  to  be  citizens  of  British  Golumbia.  ^  ^  ~" 

Without  now  questioning  the  soundness  of  either  of  these  conten-^         ^ 
tions,  it  is  enough  to  say  that  the  assignments  of  error  based  upon  , 

the  refusal  of  instructions  cannot  be  entertained.  This  is  undoubt-  l^^^'^f'' 
edly  a  suit  in  equity,  and  if  it  may  be  regarded  as  entertained  under"*^  '^  ^* 
the  general  powers  conferred  by  the  act  of  May  17,  1884  {22,  Stat.  1  TO^ 
at  L.'24,  chap.  53),  error  cannot  be  predicated  upon  the  giving  orA.AJc^"7^ 
the  refusing  of  instructions.  The  verdict  was  but  advisory  to  the  uJXHi  {r 
court,  to  be  adopted  or  disregarded  at  the  court's  discretion.    *    *    *  \^^  f^ 

The  second  contention  is  that  they  are  invalid  because  they  were  '  ^ 
not  "distinctly  marked  on  the  ground."  The  appellants  base  this  ^0£>^ 
contention  on  Gaboon's  testimony.  His  testimony  is  that  he  wrote  <^  /  o 
the  notices  of  locations  upon  a  stump  or  snag  in  the  creek,  and  theyct<xA^ 
were  as  follows :  'T,  the  undersigned,  claim  1,500  feet  running  downjl^^  ^,1^1  " 
this  creek  and  300  feet  on  each  side."  ^L^xJ£^ 

But  the  notices  produced  by  other  witnesses,  and  which  were  testi-  ^^  v 
fied  to  be  copies,  as  near  as  could  be  made  out,  of  those  on  the  stump,'^*;;;^"*"^  . 
were  respectively  as  follows  :  ^''^'^^S-^ 

Notice  is  hereby  given  that  I,  the  undersigned,  have,  this  6th  day  of  October,  ^  lijlsi 
1898,  located  a  placer  mining  claim  1,500  feet  running  with  the  creek  and  300  ^'C^'^' 
feet  on  each  side  from  center  of  creek  known  as  McKinley  creek,  in  Porcupine  l;^,    ^ ''' 
mining  district,  running  into  Porcupine  river.     This  claim  is  the  east  exten-r^^^' 

13-MiNiNG  Law     -J  '^uz^h^'^  v  ^    ^"vaH    fU^^  fto,  b 


-^ 


-co\  <»-JU  "t^o.  jt>-y>  p/j.-«.Ab-^W/^  f '^-^^  lnrM^<.«_^-rf-,X^  r>A.>v^  U^ /ua5^ 

J)  V94  LOCATION    OF   LODE   AND   PLACER    CLAIMS.  ' 

sion  of  W.  A.  Chisholm  claim  on  about  1,800  feet  from  the  first  falls  above 
B-^        the  Porcupine  river,  in  the  district  of  Alaska.  Peter  Hall,  Locator. 

■     ►  Witnesses :  J.  Hanson.  ^  ^ 

'  ^^  D.  Sutherland.  S^  if^Jf^.^  ^  K.y  ^4  J  H  - 

Notice  is  hereby  given  that  I,  the  undersigned,  have,  this  6th  day  of  Oct., 
1898,  located  a  placer  mining  claim   1,500  feet  along  creek  bottom  and  300 
feet  from  center  of  creek  each  way  on  creek  known  as  McKinley,  in  Porcu- 
pine mining  district,   described   as   follows:    West   extension  of   Peter   Hall's 
^S         claim  and  about  300  feet  above  first  falls  on  said  creek,  in  the  district  of 
^^       Alaska.  Wh.  A.  Chisholm,  Locator. 

"""^  Witnesses  :  D.  Sutherland. 

i*  fl.  James  Hanson. 

■*^  '-'^  These  notices  constituted  a  sufficient  location  ;  the  creek  was  identi- 
r«.  A»- .~fied,  and  between  it  and  the  stump  there  was  a  definite  relation 
^  ,,^^  which,  combined  with  the  measurements,  enabled  the  boundaries  of 
..  '  *^  the  claim  to  be  readily  traced.  Hazifs  v.  Victoria  Copper  Min.  Co., 
■■^\^  160  U.  S.  303,  40  L.  Ed.  436,  16  Sup.  Ct.  Rep.  282. 
'^^T  3-  Conceding,  appellants  say,  a  proper  discovery  and  a  proper  de- 
'^  ^  scription  of  the  location,  nevertheless,  as  the  citizenship  of  the  lo- 
•-^^f  cators  was  put  in  issue,  it  was  necessary  to  be  proved  to  justify  a 
9^  judgment  for  the  appellees,  because  under  §  2319,  Rev.  Stat.,  the 
)p:-"  public  lands  of  the  United  States  are  only  open  to  exploration,  occu- 
^  pation,  and  purchase  by  citizens  of  the  United  States  and  those  who 
/fvc,^^  have  declared  their  intention  to  become  such. 

t^^  In  Manuel  v.  Widff,  152  U.  S.  505,  38  L.  Ed.  532,  14  Sup.  Ct. 
^*aj.  Rep.  651,  this  court  sustained  the  validity  of  a  conveyance  of  a  min- 
'^^l^(,  ^"g"  location  to  an  alien,  reversing  a  decision  of  the  supreme  court  of 
^-^.^  .  Montana  to  the  contrary.  The  decision  was  based  upon  the  differ- 
l„^  ence  between  a  title  by  purchase  and  title  by  descent,  and  the  doctrine 
i;;;^  ^  expressed  that  an  alien  can  take  title  by  purchase,  and  can  only  be 
^j.  devested  of  it  by  office  found.  The  case  of  Doe  ex  dem.  Govencur  v. 
.^  Robertson,  11  Wheat.  332,  6  L.  Ed.  488,  was  cited  and  approved, 
^  I  and  the  remarks  of  Mr.  Justice  Johnson  in  that  case  become  apposite : 
*wv-  "That  an  alien  can  take  by  deed,  and  can  hold  until  office  found, 

k^  p .  must  now  be  regarded  as  a  positive  rule  of  law,  so  well  established 
^  ^  that  the  reason  of  the  rule  is  little  more  than  a  subject  for  the  anti- 
quary. It  no  doubt  owes  its  present  authority,  if  not  its  origin,  to 
a  regard  to  the  peace  of  society  and  a  desire  to  protect  the  individual 
from  arbitrary  aggression.  Hence  it  is  usually  said  that  it  has  regard 
■  to  the  solemnity  of  the  livery  of  seisin,  which  ought  not  to  be  de- 
i<^ /^->,'' vested  without  some  corresponding  solemnity.  But  there  is  one 
7^  (  '  ^^^^°"  assigned  by  a  very  judicious  compiler,  which  from  its  good 
->  sense  and  applicability  to  the  nature  of  our  government  makes  it 
*^"  proper  to  introduce  it  here.  I  copy  it  from  Bacon,  not  having  had 
^^  the  leisure  to  examine  the  authority  which  he  cites  for  it :  'Every  per- 
'  ^  son,'  says  he,  'is  supposed  a  natural-born  subject  that  is  resident  in 
'^^-flfv   the  Kingdom  and  that  owes  a  local  allegiance  to  the  King,  till  the 

«...  .  hJ^,-(^  i^ 


7 


T'^^^j^    (-'*'TT    '-^*-^         MARKING   THE    LOCATION.  I95  »»  «.>  H 

contrary  be  found  by  office.'    This  reason,  it  will  be  perceived,  applies  cu,^ 
with  double  force  to  the  resident  who  has  acquired  of  the  sovereign  •.     \7* 
himself,  whether  by  purchase  or  by  favor,  a  grant  of  freehold."  **^"p\«^ 

That  grantees  of  the  public  land  take  by  purchase  this  court,  in  ^M-^# 
Manuel  v.  Wulif,  left  no  doubt.     It  was  said  that  when  a  location  <^c-A 
is  perfected  it  has  the  effect  of  a  grant  by  the  United  States  of  the  j*^  ' 
right  of  present  and  exclusive  possession.     Forbes  v.  Gracey,  94  *^  ^^ 
U.  S.  762,  24  L.  ed.  313 ;  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  ed.  K^i— * 
735;  Gwillim  v.  Donnellan,  115  U.  S.  45,  29  L.  Ed.  348,  5  Sup.  Ct.  .sr*-  ■'^  -■ 
Rep.  mo;  Noyes  v.  Mantle,  127  U.  S.  348,  32  L.  Ed.  168,  8  Sup. 
Ct.  Rep.  II 32.  "■/" 

The  appellants,  however,  deny  the  application  of  Manuel  v.  Wulff,  A^<, 
and  contend  that  this  suit  having  been  brought  under  §  500  of  the  'f«^  .s^' 
Oregon  Code,  in  order  to  maintain  the  suit,  the  appellees  must  show  ^cx-Li\  ■ 
a  right  to  the  exclusive  possession  of  the  ground  in  dispute.    This  is  »         .;■ 
in  effect  to  say  that,  while  the  validity  of  the  location  may  not  be        " 
disputed  by  applicants  that  the  right  to  the  possesion,  which  is  but  ' '^''•^^^^ 
an  incident  of  the  location,  may  be.    We  do  not  concur  in  this  view.  \'t^^\j-< 
>  TThe  meaning  of  Manuel  v.  Wulff  is  that  the  location  by  an  alien  c*/%a*ji 
'  I    and  all  of  the  rights  following  from  such  location  are  voidable,  not  ^.^n>L 
f    void,  and  are  free  from  attack  by  anyone  except  the  government.         ^        » 

It  is  not  necessary  to  notice  other  points  made  by  appellants;  and,    " ''  "^-^ 
discovering  no  error  in  the  record,  judgment  is  afHrnied.  -  '     ■'^•- 

KERN  OIL  CO.  V.  CRAWFORD.      ,^;j:;:^.;  ^^ 
1903.     Supreme  Court  of   California.     143   Cal.  298,   ^6  Pac*  ^*'*^*-' 


iiii. 


-t^      Action  by  the  Kern  Oil  Company  against  Mrs.  J.  M.  Crawford.  .  ^v'-n/- 
-^'  From  a  judgment  for  defendant,  and  from  an  order  denying  a  new  ^ 
A       trial,  plaintiff  appeals.    Reversed.  *^    '     "' 

^  Van  Dyke,  J.^® — When  this  case  was  in  department  the  follow-  ^-^ 

'^     ing  opinion  was  rendered ;    "*     *     *     On  the  29th  day  of  May,  { ,    .  . 
Cj^  1899,  the  grantors  of  plaintiff,  who  were  citizens  of  the  United.  ^ 
y^     States,  and  duly  qualified  under  the  laws  thereof  to  enter  and  locate      "^ 

mineral  lands,  entered  upon  the  northeast  quarter  of  section  32,  t,^*' 
^"^  township  28,  south  range  28,  east  M.  D.  M.,  with  intent  to  locate  C.>^  5*" 
the  same  as  a  placer  mining  claim.  They  posted  a  notice  upon  the  ^|,^^4 
said  land,  claiming  the  quarter  section  as  placer  mining  ground,  and  .  » 
naming  it  the  'Dewey  No.  4  Placer  Mining  Claim,'  claiming  it  for  *"  '  ^*«-»- 
petroleum,  asphaltum,  gypsum,  and  all  other  forms  and  deposits  Vt'"-V 
contained  in  and  under  said  quarter  section.     The  notice  was  dated,  vi-c*  • 

-'Parts  of  the  opinion  are,  omitted.  H  ^^'^^'^T^'^'  ""^''^"^vW 


A) 


.   IQO  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

-^H/^-  complied  with  the  law,  and  was  recorded  with  the  county  recorder 
Vt^-'*  ,  of  Kern  county  on  June  i,  1899.  The  locators,  after  posting  and 
ULcu,'  recording  said  notice,  caused  a  survey  to  be  made  in  order  to  mark 
•\.  the  boundaries  of  their  claim  to  the  quarter  section.  Stakes  were 
^  set  at  the  northeast,  southeast,  northwest,  and  southwest  corners  . 

~**^'     thereof.     These  stakes  were  4x4  redwood  posts,  painted  white,  and 
J ^***''^  ^  marked,  the  one  at  the  northeast  corner,  'N.  E.  corner  section  32,' 
^  <j^, .   and  the  one  at  the  southeast  corner,  'S.  E.  corner  section  32.'     On 
1^^^    a  line  between  said  two  last-named  stakes  the  locators  caused  to  be 
--.    '    set  several  laths  to  mark  the  line,  which  was  believed  to  be  the  east 
J  ^'" "  line  of  the  quarter  section  and  the  east  line  of  the  claim.    The  boun- 
■^T^      dary  on  the  east  as  so  marked  on  the  ground  could  be  readily  traced. 
'.  A^.'> '  The  said  northeast  quarter  is  and  was  public  mineral  land,  and  the 
u  K     locators  discovered  petroleum  and  placer  mineral  within  the  boun- 
^*  *  ^     daries  thereof.     The  said  stake  marked  'N.  E.  corner  section  32' 
''^^'v.     was  and  is  73  feet  west  of  the  true  northwest  corner  of  the  north- 
^*''*"*^    west  quarter  of  section  33,  and  the  stake  marked  'S.  E.  corner  sec- 
'***^'   tion  32'  was  and  is  24  feet  west  of  the  southwest  corner  of  the 
'^  ^-O-northwest  quarter  of  section  33.    There  was  thus  a  strip  of  land  east 
"y^-*     of  the  line  marked  by  the  locators  as  the  east  line  of  the  quarter 
,  4;v.v,     section,  running  north  and  south  the  entire  length  of  the  quarter 
'♦  0^      section,  and  west  of  the  true  east  line  of  the  quarter  section,  said 
strip  being  73  feet  wide  at  the  north  end  thereof  and  24  feet  wide 
^^*'*'*i;^at  the  south  end  thereof.    This  strip  is  the  land  in  controversy. 

►  0  "The  defendant  was  and  is  duly  qualified  to  enter  mining  claims, 
and  is  a  citizen  of  the  United  States.  On  the  3d  day  of  March, 
'^  1900,  she  entered  upon  said  strip  of  land,  caused  it  to  be  surveyed, 
1^2^ -and  stakes  set  at  the  corners  thereof  for  the  purpose  of  marking 
'^'"^^  '  its  boundaries.  She  duly  posted  a  notice  of  her  location,  describing 
s_^\  the  strip  of  land,  and  naming  her  claim  'Mountain  View  Placer 
JT-N  Mining  Claim.'  She  discovered  petroleum  oil  and  placer  mineral 
-  '*'*'  on  the  said  claim  so  located  by  her,  and  recorded  her  notice  in  the 
^^  '     county  recorder's  office  of  Kern  county. 

i<-^Vj^--  "The  main  question  presented  for  determination  is  whether,  con- 
L  »    '^ceding  that  the  law  requires  the  boundaries  of  placer  claims  on  sur- 
veyed lands  to  be  marked,  the  original  locators  sufficiently  marked 
■i-Cfe.  r  their  claims.     Defendant  is  presumed  to  have  had  notice  of  the  lo- 
ll^       cation  made  by  plaintiff's  grantors  and  the  markings  on  the  stakes. 
f  tJ-      The  stake  painted  white,  and  marked  'N.  E.  corner  section  32,'  was 
V  r>-('    not  without  meaning  to  defendant  and  her  surveyor.    And  so  of  the 
^^^  j;^^stake  marked  'S.  E.  corner  section  32.'     Particularly  is  this  so  when 
j.j^_^    the  notice  claimed  the  quarter  section.     It  was  only  by  having  a 
Y^   survey  made  that  defendant  discovered  that  the  stakes  set  by  the 
■^  ^ "  original  locators  were  west  of  the  true  line.     While  these  stakes, 
'^''^      if  standing  alone  with  no  marks  upon  them,  would  indicate  to  de- 
^  (%^-.fendant  that  they  were  intended  to  mark  the  easterly  boundary  of 


MARKING   THE   LOCATION.  IQ7 

the  claim,  yet  the  very  stakes  themselves  told  her  that  the  claim  was  ^^  '^^j 
intended  to  embrace  the  quarter  section  to  the  east  line  thereof .  6»>«-V  «*f^ 
And  the  notice  told  her  the  same  thing.     It  was  not  reasonable  forUC  hf^ 
her  to  believe  that  the  original  locators  did  not  intend  to  include  the  >    iitT' 
strip  of  land  in  their  location.    The  United  States  had  surveyed  and  *' 
marked  the  quarter  section  by  monuments,  and  an  unintentional  mis-  C^'^^^'x 
take  in  retracing  the  lines  should  not  be  held  to  be  a  waiver  by  the~^<.«:>-^ 
locators  of  the  claim  to  the  whole  quarter  section.     *     *     *     The  />tJ^  ■■ 
object  of  the  statute  as  to  marking  the  location,  so  that  its  boun- ,V.  ,^^. 
daries  can  be  readily  traced,  is  to  notify  the  public  that  the  claim  jjTl^^ 
has  been  located   and  is   claimed  under  the  mining  laws  of  the  *^  ^*'**»^-' 
United  States.     Whatever  is  sufficient  to  give  this  notice  does  give  t-«/t-^*-^ 
it.     Technical  accuracy,  either  in  the  location  of  the  stakes  or  in^X-p^ft-Vi 
the  wording  of  the  notice,  is  not  required.     If  a  third  party,  intend-f||-/k*  (j 
ing  to  locate,  can  readily  ascertain  from  what  has  been  done  by  the^ 

prior  locator  the  extent  and  boundaries  of  the  claim  so  located,  theifij '^'*!"v\ 

the  object  of  the  statute  has  been  accomplished.  In  this  case  the<^^-*-^'^5^ 
defendant  had  ample  notice  of  the  location  of  the  quarter  section*tvLn-  f 
by  plaintiff's  grantors ;  she  knew  what  they  intended  to  take.  If  Kv-^J^ 
they  made  a  mistake  as  to  the  location  as  to  the  west  line,  it  did  not 
in  any  way  injure  defendant.  She  will  not  be  allowed  to  take  ad-ft-'^«*>^ 
vantage  of  a  mistake  which  in  no  way  injured  her.  She  knew  shef*1>j2jX\> 
was  attempting  to  locate  land  claimed  by  the  original  locator.  It,  .  X,^^,.: 
appears  that  defendant  found  the  lines.     She  thought  that  the  loca-'  j 

tors  had  not  found  them,  and,  although  she  was  told  by  the  notice  ;        "j 
that  the  quarter  section  had  been  located  and  entered,  she  acted  M  •r>t*5 
upon  her  peril  in  regarding  a  portion  of  it  as  vacant."  L*^H  , 

The  department  opinion  is  adopted,  and  in  addition  to  what  is  i    4-^,^ 
there  said,  and  in  answer  to  the  petition  for  rehearing,  we  will  dis-  ^ 
cuss  other  points.     *     *     '"  /*"*'f  N] 

An'd,  as  the  point  is  urged  by  appellant  that  it  is  not  necessary  l^  i 
to  mark  the  boundaries  of  a  placer  claim  upon  the  ground,  where  cT^ 
the  location  is  of  a  legal  subdivision  upon  surveyed  lands,  we  will  f^'-*^ 
discuss  the  question.  jUL^pJL 

The  Revised  Statutes  of  the  United  States  (section  2319  et  seq.)  i,^f%  i 
provide  as  to  the  location  of  vein  or  lode  claims.     Section  2324  pro-  a,       --v 
vides:     "The  location  must  be  distinctly  marked  on  the  ground  so'^^    j 
that  its  boundaries  can  be  readily  traced.     All  records  of  mining'  '  *  '"*-»- 
/claims  hereafter  made  shall  contain  the  name  or  names  of  the  loca-  '  ^4v.vv 
^f    tors,  the  date  of  the  location,  and  such  a  description  of  the  claim  or  f  /xf»i 
claims  located  by  reference  to  some  natural  object  or  permanent  ^  ^ 

momiment  as  will  identify  the  claim."     After  the  provisions  fully  t*     ,  ^s 

_      covering  vein  or  lode  claims,  section  2329  provides :    "Claims  usual-^nf  ^__^fv 
ly  called  'placers'  including  all   forms  of  deposit,  excepting  veins  X 
of  quartz,  or  other  rock  in  place,  shall  be  subject  to  entry  and    pat-  T^-***^ 
ent  under  like  circumstances  and  conditions,  and  upon  similar  pro-  *<   •^f' 

^^.xCJk^it^ .  it^j»<Jt  C  A-'^l-M  *W*^  6-o^*X!»  <}  6^*^  4wi)  \^  Ca- 

V  5  Jwr^t-r*^  ctiwn  I'Wu)  ^"^^    ^-  •  -^  'H^x-J  A^-ii^  c4k^^ 


f^-<N^  i     ""^  rv-^'T^, 


(^^^      y-^-y^^-^e^^  ^  Y0%A^   e^  v-^^ 


»^j»     19^''  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

rf^t-vv^  ceedings  as  are  provided  for  vein  or  lode  claims ;  but  where  the  lands 

'.J^^^    have  been  previously  surveyed  by  the  United  States,  the  entry  in  its 

I   exterior  limits  shall  conform  to  the  legal  subdivisions  of  the  public 

g„^(^,v- lands."     Section  2330  provides  that  legal  subdivisions  of  40  acres 

•fX^^      may  be  subdivided  into  lo-acre  tracts,  and  that  joint  entries  may  be 

^^    ^    made  by  two  or  more  persons,  but  that  no  location  "shall  exceed 

'*^'  -    one  hundred  and  sixty  acres  for  any  one  person  or  association  of 

C^>^^-    persons,   which   location  shall   conform  to  the  United   States   sur- 

^^      veys."    Section  2331  provides  :    "Where  placer  claims  are  upon  sur- 

^     veyed  lands,  and  conform  to  legal  subdivisions,  no  further  survey 

^JS<,\     or  plat  shall  be  required,  and  all  placer  claims  located  after  the  loth 

^       day  of  May,   1872,  shall  conform  as  near  as  practicable  with  the 

United  States  system  of  public  surveys,  and  the  rectangular  subdi- 

^^f      visions  of  such  surveys,  and  no  such  location  shall  include  more  than 

l„^/v„.    twenty  acres  for  each  individual  claimant."-'      Section  2334  pro- 

p^/^^     vides  for  the  survey  of  mining  claims,  and  "the  expenses  of  the  sur- 

f   vey  of  vein  or  lode  claims,  and  the  surveys  and  subdivision  of  placer 

-"VS      claims  into  smaller  quantities  than  one  hundred  and  sixty  acres, 

L»      /      together  with  the  cost  of  publication  of  notices,  shall  be  paid  by  the 

MvC^^^^^^^"*^'"     ^^  ^^  ^^^"''^  ^^^"  *^^^*  ^^^^  system  contemplates  that  a 

%ale  of  placer  claims  will  ordinarily  be  made  by  legal  subdivisions. 

C^    When  a  location  is  made  according  to  legal  subdivisions,  no  provi- 

'^^'*^^  ^'  In   Mitchell  V.   Hutchinson,   142   Cal.  404,   76   Pac.  55,  56,   Angellotti,   J., 
tj/j)     for  the  court  said:    "It  is  contended  by  defendants  that  no  valid   location 
Vr^  '    was  efifected  by  the  Kentucky  claimants,  for  the  reason  that  their  claim  was 
Ui^O.     "Pon  surveyed  government  land,  and  did  not  conform  to  legal  subdivisions. 
^^        The  findings  show  that  the   location  was  made  upon   surveyed  government 
*^       land,  and  that  the  description  thereof  by  metes  and  bounds  consisted  of  nine 
(A       courses,  of  which  only  five  conformed  to  the  lines  of  the  United  States  sys- 
^^       tem  of  public  land  surveys.     This  fact  would  not  of  itself,  however,  render 
jT        the  location  invalid,  for  it  is  well  settled  that,  under  sections  2329,  2330.  and 
"^       2331  of  the  Revised  Statutes  of  the  United  States   [U.  S.  Comp.  St.   1901,  p. 
-0_      1432],  placer  claims  are  required  to  conform  to  the  lines  of  the  public  survey 
■^p^      only  where  such  conformity  is   reasonably  practicable,   and  that,   where  such 
V  .  conformity  is   not  reasonably  practicable,   it  is   sufficient   if   they   conform   to 

N  \>       such  lines  as  near  as  is  reasonably  practicable.     In  was  held  by  Secretary 
of  the  Interior  Teller  in  Re  Rablin,  2  Land  Dec.  Dep.  Int.  764,  that  it  was 
-~^      the  intention  of  Congress  to  provide  for  cases  where  the   situation   of  the 
"M-^j   deposits  IS  such  that  conformity  of  the  location  with  subdivision  lines  is  un- 
^^       reasonable,  and  to  permit  persons  to  take  a  certain  quantity  of  land  fit  for 
'-v^       mining,  and  not  to  compel  them  to  take  such  a  quantity  irrespective  of  its 
fitness  for  mining,  and  that  it  was  not  practicable  to  conform  to  the  lines  of 
'*-^-     the  survey  in  a  case  where  the  entire  placer  deposit  in  a  canon  within  certain 
limits  IS  claimed,  and  where  the  land  on  either  side  is  entirely  unfit  for  min- 
•'^       ing  or  agriculture.     See,  also,  Esperance  M.  Co.,  10  Copp's  Land.  Dec.  338;  /^> 
t>W      l!?o'"^  Pearsall  &  Freeman,  6  Land.  Dec.  Dep.  Int.  227;  Lindley  on  Mines,  §      ,J^ 
^^"f      448.     We   have   not  been    referred   to    any    decision    or   ruling   disapproving  V/^a 
■0*V      the  views   e.xpressed   in   the   above  authorities.     The   case   of   Miller    Placer    ,      'h 
Claim,  30  Land  Dec.  Dep.  Int.  225,  351,  was  not,  as  we  read  it,  intended  toM"*'    % 
^^       rnake  any  change  in  the  rule  laid  down  in  the  prior  decisions.     In  view  of    *  |a/ 
I      this  well-established  rule,  the  findings  of  the  trial  court  entirely  dispose  of  n>.'^^ 
-»A.      defendants'   contention   in  this  behalf."  \\r 

^^  ^    .Q>iu.>.       ■'■'• '  .      CwVY^^  €!is^t  U^  U^ 


'^  '^  MARKING   THE   LOCATION.  1 99 

sion  is  made  for  surveying  it  again,  for  the  evident  reason  that  it 
is  sold  as  per  the  survey  that  has  already  been  made  by  the  United 
States.  The  statute  expressly  provides  that  in  such  a  case  no  further 
survey  or  plat  shall  be  required.  The  purchaser  takes  it  to  the  extent 
of  its  exterior  boundaries  as  already  established  by  the  United 
States.  His  notice  of  location  is  a  notice  of  its  boundaries,  pre- 
cisely as  it  would  be  in  case  of  a  homestead  or  pre-emption  claim. 
There  is  no  reason  why  the  locator  should  be  required  to  stake  it 
out  and  mark  its  bovmdaries,  nor  does  the  statute  require  it.  They 
have  already  been  staked  out  and  marked,  and  cannot  be  changed. 
Any  person  seeing  the  notice  could  by  employing  a  surveyor  or 
otherwise,  find  the  boundaries  as  easily  as  could  the  locator,  and  it 
evidently  is  the  duty  of  such  person  to  do  so,  in  case  he  is  interested 
in  knowing  where  they  are.  The  notice  in  this  case  stated  to  the 
world  that  the  northeast  quarter  of  section  32  had  been  located  as 
a  placer  claim.  The  notice  did  not  have  to  further  state  the  boun- 
daries of  the  quarter  section,  nor  did  the  locator  have  to  place  stakes 
or  marks  upon  the  ground  to  show  to  any  one  the  lines  of  the  quar- 
ter section.  He  was  no  more  required  to  do  this  than  he  was  to 
take  defendant  around  and  show  her  the  lines.  As  stated  in  the 
department  opinion:  'Tt  appears  that  defendant  found  the  lines. 
She  thought  that  the  locators  had  not  found  them,  and,  although 
she  was  told  by  the  notice  that  the  quarter  section  had  been  located 
and  entered,  she  acted  upon  her  peril  in  regarding  a  portion  of  it 
as  vacant."  The  government  survey  of  public  lands  is  made  by 
running  and  marking  the  lines  of  the  townships  and  sections,  and 
by  marking  the  corners  of  the  townships,  sections,  and  quarter  sec- 
tions, and  a  conveyance  by  reference  to  the  legal  subdivision  refers, 
as  a  matter  of  law,  to  the  monuments  placed  on  the  ground  by  the 
United  States.  Powers  v.  Jackson,  50  Cal.  429 ;  Bullock  v.  Rouse, 
81  Cal.  591.  22  Pac.  919.  The  construction  herein  placed  upon  the 
statutes  as  to  placer  claims  is  supported  by  the  opinion  of  the  assist- 
ant secretary  of  the  Interior  Department  in  an  opinion  dated  March, 
1896.  Reins  v.  Murray,  22  Land  Dec.  Dept.  Int.  409.  He  said,  in 
speaking  of  placer  locations :  'Tt  does  not,  in  my  judgment,  mean 
that  when  the  placer  is  located  on  surveyed  lands  it  is  necessary  to 
mark  the  boundaries.  There  is  no  purpose  that  can  be  subserved 
by  so  doing.  The  public  surveys  are  as  permanent  and  fixed  as  any- 
thing can  be  in  that  line,  and  any  fractional  part  of  a  section  can 
be  readily  found  and  its  boundaries  ascertained  by  that  method  for 
all  time  to  come,  and  is  necessarily  more  stable  and  enduring  than 
marking  it  by  perishable  or  destructible  stakes  or  monuments." 

In  Temescal  Oil  Co.,  etc.,  v.  Salcido,  137  Cal.  212,  69  Pac.  loio, 
it  was  held  that  the  location  of  a  placer  claim  was  properly  marked 
on  the  ground,  and  in  the  opinion  it  is  said:  "We  are  influenced 
somewhat  in  our  consideration  of  the  point  by  the  fact  that  the 


200  LOCATION    OF   LODE   AND    PLACER    CLAIMS. 

notice  of  location  which  was  posted  and  recorded  described  the  claim 
by  its  government  subdivision,  the  land  having  been  already  sur- 
veyed by  the  government,  and  that  a  government  monument  was 
still  in  place  at  one  corner  of  the  claim  at  the  time  of  the  location." 

The  case  of  White  v.  Lee,  78  Cal.  593,  21  Pac.  363,  12  Am.  St. 
Rep.  115,  is  in  conflict  with  what  has  here  been  said,  and  is  over- 
ruled. That  case,  in  our  opinion,  does  not  correctly  interpret  the 
statutes.  It  proceeds  upon  the  theory  that  the  "boundaries  shall 
be  distinctly  marked  on  the  ground."  The  requirements  of  section 
2324  are  not  that  the  boundaries  shall  be  distinctly  marked  on  the 
ground,  but  "the  location  shall  be  distinctly  marked  on  the 
ground  so  that  its  boundaries  can  be  readily  traced."  The  location 
here  was  distinctly  marked  on  the  ground,  and  its  boundaries  can 
be  readily  traced  by  any  one  who  will  follow  the  "exterior  limits" 
of  the  quarter  section.  White  v.  Lee  has  never  been  followed  by  this 
court,  except  perhaps  in  Anthony  v.  Jillson,  83  Cal.  298,  23  Pac. 
419,  where  the  point  was  not  necessary  to  the  decision  in  the  latter 
case,  and  was  dictum.  We  more  readily  reach  this  conclusion  for 
the  reason  that  our  decision  in  the  case  at  bar  will  not  impair  or  in- 
validate any  location  made  in  conformity  with  White  v.  Lee.  If 
the  location  and  entry  of  any  one  has  been  made  in  conformity  with 
the  ruling  in  White  v.  Lee,  it  is  valid  under  the  ruling  in  this  case, 
although  more  may  have  been  done  than  was  necessary. 

The  judgment  and  order  are  reversed,  and  the  court  below  di- 
rected to  cause  judgment  to  be  entered  on  the  findings  in  favor  of 
plaintiff.^* 


WORTHEN  et  al.  v.  SIDWAY  et  al. 
1904.     Supreme  Court  of  Arkansas.     72  Ark.  657,  79  S.  W.  'j'jy. 

Action  by  W.  B.  Worthen  and  others  against  H.  T.  Sidway  and 
others  to  determine  the  ownership  of  certain  mining  claims.  From 
a  judgment  adjusting  the  claims,  complainants  Worthen  and  others 
appeal.    Affirmed  in  part,  and  reversed  in  part. 

Battle,  J.29_*  *  *  On  the  6th  day  of  July,  1889,  M.  C. 
Cantrell,  T.  R.  Cantrell,  J.  B.  Moss  and  W.  A.  Bradley,  whom,  for 
convenience,  we  shall  hereafter  call  "Cantrell  and  others,"  attempted 
to  locate  a  placer  mining  claim  upon  the  west  half  of  the  northeast 
quarter  of  said  section  31,   [upon  which  Worthen  and  others  had 

^_By  the  California  Mining  Statute  of  1909  it  is  provided  tliat  a  placer 
claim  taken  by  legal  subdivisions  on  land  covered  l)y  the  United  States  sur- 
vey need  not  be  staked  or  monumented.     Statutes  Cal.   1909,  p.  314,  §  1426c. 

"°  Parts  of  the  opinion  are  omitted. 


MARKING   THE    LOCATION.  20I 

placer  claims]   and  posted  on  a  tree    on    the    land    the    following 
notice : 

"Notice  is  hereby  given  that  the  undersigned  claimant,  under  the  revised 
statutes  of  the  United  States,  section  2331,  chapter  6,  title  32,  act  of  May  10, 
1872,  and  legislation  supplemental  thereto,  and  the  local  laws  of  Newton 
County  Mining  District  of  Arkansas,  has  this  day  located  and  by  possessory 
right  claims  the  exclusive  right  to  hold,  prospect  and  mine  upon  the  follow- 
ing described  land  lying  in  the  county  of  Newton  and  State  of  Arkansas, 
to-wit:  west  half,  northeast  quarter  of  section  31,  township  10  north,  range  21 
west,  including  all  leads,  lodes,  dips,  spurs  and  angles,  with  a  view  to  obtain- 
ing a  patent  to  the  same. 

"The  name  of  this  claim  is  the  Independence,  Lot  No.  .     All  persons 

are  notified  not  to  trespass  on  the  same. 

"Located  this  6th  dav  of  Julv,  1899. 

"M.  C.  Cantrell.     T.  R.   Cantrell. 
"J.  B.  Moss.    W.  A.  Bradley. 

"Witnesses : 

"A.  J.  Hudson,  Jesse  Hickman." 

Further  than  this  they  traced  no  boundary  lines ;  and  performed 
only  $20  worth  of  work  on  their  claim.     *     *     * 

Cantrell  and  others  attempted  to  prove  in  this  suit  that  Worthen 
and  others  had  failed  to  do  upon  their  claims  the  annual  work  re- 
quired by  the  statute,  and  had  not  thereafter  resumed  work  in  good 
faith  before  they  located  their  claims.  But  it  was  shown  that  they 
did  considerable  work  before  that  time,  and  thereafter,  in  the  year 
1899,  performed  $500  worth  of  labor  upon  their  claims,  and  $500  or 
$600  worth  of  work  in  the  year  1900.     *     *     * 

The  validity  of  the  location  of  the  mining  claims  by  the  grantors 
of  Worthen  and  others  is  not  denied  or  questioned.  We  shall  there- 
fore treat  them  as  valid. 

Was  the  location  of  a  [placer]  mining  claim  by  Cantrell  and 
others  valid  ? 

They  attempted  to  make  a  location  by  posting  a  notice  on  a  tree, 
in  which  they  claimed  the  exclusive  right  to  hold,  prospect,  and  mine 
upon  the  west  half  of  the  northeast  quarter  of  section  31,  township 
10  north,  range  21  west.  No  effort  was  made  to  distinctly  mark  the 
location  on  the  ground  so  that  its  boundaries  can  be  readily  traced. 
The  notice  did  not  contain  "such  description  of  the  claim  or  claims 
located  by  reference  to  some  natural  or  permanent  monument  as 
will  identify  the  claim." 

Was  their  claim  located  sufficiently  to  entitle  them  to  hold  the 
same? 

Section  2324  of  the  Revised  Statutes  of  the  United  States  [_U.  _S. 
Comp.  St.  1901,  p.  1426J  provides:  "The  miners  of  each  district 
may  make  regulations  not  in  conflict  with  the  laws  of  the  United 
States,  or  with  the  laws  of  the  state  or  territory  in  which  the  dis- 
trict is  situated,  governing  the  location,  manner  of  recording,  amount 
of  work  necessary  to  hold  possession  of  a  miniijg  claim,  subject 


202  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

to  the  following  requirements :  The  location  must  be  distinctly 
marked  on  the  ground  so  that  its  boundaries  can  be  readily  traced. 
All  records  of  mining  claims  hereafter  shall  contain  the  name  or 
names  of  the  locators,  the  date  of  the  location,  and  such  description 
of  the  claim  or  claims  located  by  reference  to  some  natural  object 
or  permanent  monument  as  will  identify  the  claim." 

And  section  2329  of  the  same  statutes  [U.  S.  Comp.  St.  1901,  p. 
1432]  is  as  follows :  "Claims  usually  called  'placers,'  including  all 
forms  of  deposits  excepting  veins  of  quartz,  or  other  rock  in  place, 
shall  be  subject  to  entry  and  patent  under  like  circumstances  and 
conditions,  and  upon  similar  proceedings,  as  are  provided  by  law 
for  vein  or  lode  claims ;  but  where  the  lands  have  been  previously 
surveyed  by  the  United  States,  the  entry  in  its  exterior  limits  shall 
conform  to  the  legal  subdivisions  of  the  public  lands." 

It  has  generally  been  held  by  courts  that  these  statutes  are  man- 
datory, and  that  in  the  location  of  mining  claims  their  requirements 
must  be  strictly  complied  with  (North  Noonday  Mining  Co.  v. 
Orient  Mining  Co.,  6  Sawy.  299,  11  Fed.  125;  Doe's  Ex'rs  v.  Wa- 
terloo Mining  Co.,  44  U.  S.  App.  204,  70  Fed.  455,  17  C.  C.  A.  190; 
Erwin  v.  Perego,  93  Fed.  608,  35  C.  C.  A.  482 ;  20  A.  &  E.  En- 
cyclopedia of  Law  [2d  Ed.]  713  and  cases  cited)  ;  and  that  they 
apply  wath  equal  force  to  placer  and  lode  claims  (section  2329,  Rev. 
St.  U.  S. ;  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31;  Sweet 
V.  Webber,  7  Colo.  443,  4  Pac.  752 ;  McDonald  v.  Montana  Wood 
Co.,  14  Mont.  88,  35  Pac.  668,  43  Am.  St.  Rep.  616;  North  Noon- 
day Mining  Co.  v.  Orient  Mining  Co.,  6  Sawy.  299,  11  Fed.  125; 
20  A.  &  E.  Ency.  of  Law  [2d  Ed.]  714,  and  cases  cited). 

In  order  to  acquire  a  mining  claim  of  any  description,  its  "loca- 
tion must  be  distinctly  marked  on  the  ground,  so  that  its  boundaries 
can  be  readily  traced."  The  marking  on  the  ground  may  be  any 
physical  marks  placed  or  natural  object  already  there,  which  of 
themselves,  or  in  connection  with  writings,  signs,  or  other  things 
upon  the  ground,  will  tend  to  inform  one  seeking  to  identify  the 
claim  as  to  the  quantity  and  identity  of  the  land  claimed.  North 
Noonday  Mining  Co.  v.  Orient  Mining  Co.,  6  Sawy.  299,  11  Fed. 
125 ;  Conway  v.  Hart,  129  Cal.  480,  62  Pac.  44;  Golden  Fleece  Gold, 
etc.,  Mining  Co.  v.  Cable  Consol.  Gold,  etc..  Mining  Co.,  12  Nev. 
312;  Gleeson  v.  Martin  White  Mining  Co.,  13  Nev.  442.  Such 
physical  marks  or  natural  objects  may  be  stakes  driven  in  the 
ground,  stone  monuments,  blazed  trees,  confluences  of  streams,  min- 
ing shafts,  mountains  peaks,  crossing  of  roads,  and  streams.  Ham- 
mer V.  Goldfield  Mining  Co.,  130  U.  S.  291,  9  Sup.  Ct.  548,  32  L. 
Ed.  964;  Bennett  v.  Harkrader,  158  U.  S.  442,  15  Sup.  Ct.  863,  39 
L.  Ed.  1046;  20  A.  &  E.  Ency.  of  Law  [2nd  Ed.]  719,  and  cases 
cited. 

McKinlev  Creek  Mining  Co.  v.  Alaska  U.  S.  Mining  Co.,   183 


MARKING   THE    LOCATION.  203 

U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331,  is  a  good  illustration  of 
what  is  a  sufficient  marking  on  the  ground.  In  that  case  one  Cahoon 
found  gold  in  a  creek,  and  located  a  claim  by  posting  notices  upon 
a  stump  in  the  creek,  one  of  which  is  as  follows :  "Notice  is  hereby 
given  that  I,  the  undersigned,  have  this  6th  day  of  October,  1898, 
located  a  placer  mining  claim,  1,500  feet  running  with  the  creek, 
and  300  feet  on  each  side  from  the  center  of  the  creek,  known  as 
McKinley  creek,  in  Porcupine  river.  This  claim  is  the  extension 
of  W.  A.  Chisholm  claim  on  about  i,8oo  feet  from  falls  above 
Porcupine  river,  in  the  district  of  Alaska." 

The  court  said:  "These  notices  constituted  a  sufficient  location. 
The  creek  was  identified,  and  between  it  and  the  stump  there  was 
a  definite  relation  which  combined  with  the  measurement  enabled 
the  boundaries  of  the  claim  to  be  readily  traced,"  cited  Haws  v. 
Victoria  M.  Co.,  i6o  U.  S.  303,  16  Sup.  Ct.  282,  40  L.  Ed.  436. 

It  is,  however,  contended  that  the  requirement  as  to  location  of 
a  placer  claim  by  marks  on  the  ground,  so  that  its  boundaries  may 
be  readily  traced,  does  not  apply  where  the  land  has  been  surveyed, 
and  the  claim  is  for  the  whole  of  a  legal  subdivision.     ''■'     *     * 

So  much  of  section  2331  as  provides  that,  where  the  lands  have 
been  previously  surveyed  by  the  United  States,  all  placer  mining 
claims  located  thereon  shall  conform  to  the  legal  subdivision  of  the 
public  lands,  is  simply  a  direction  as  to  where  the  claimant  shall 
run  the  exterior  lines  of  his  claim.  It  is  not  inconsistent  with  the 
requirement  to  the  statute  as  to  how  the  lines  shall  be  marked  or 
evidenced;  nor  does  it  dispense  with,  or  answer  the  purpose  of, 
such  requirement.  The  language  of  the  statute  is,  "The  location 
must  be  distinctly  marked  on  the  ground,  so  that  its  boundaries  can 
be  readily  traced."  The  intention  of  this  statute  is  that  the  boundaries 
shall  be  so  designated  by  marks  that  they  can  be  ascertained  by  an 
inspection  of  the  ground  without  the  aid  of  a  surveyor,  and  can  be 
readily  traced  by  such  marks.  As  said  in  White  v.  Lee,  78  Cal. 
593,  2"i  Pac.  363,  12  Am.  St.  Rep.  115:  "The  men  for  whose  in- 
formation the  boundaries  are  required  to  be  marked  wander  over 
the  mountains  with  a  very  small  outfit.  They  do  not  take  sur^ 
veyors  with  them  to  ascertain  where  the  section  lines  run  and  ordi- 
narily it  would  do  them  no  good  to  be  informed  that  a  quarter  section 
of  a  particular  number  had  been  taken  up.  They  would  derive  no 
more  information  from  it  than  they  would  from  a  description  by 
metes  and  bounds,  such  as  would  be  sufficient  in  a  deed.  For  the 
information  of  these  men  it  is  required  that  the  boundaries  shall  be 
'distinctlv  marked  upon  the  ground.'  The  section  lines  may  not 
have  been  'distinctly'  marked  upon  the  ground,  or  the  marks  may 
have  become  obliterated  by  time  or  accident.  And  to  say  that  the 
mere  reference  to  the  legal  subdivision  is  of  itself  sufficient  would, 
in  our  opinion,  defeat  the  purpose  of  the  requirement."     Anthony 


204  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

V.  Jillson,  83  Cal.  296,  23  Pac.  419;  i  Lindley  on  Mines  (2nd  Ed.) 
§  454,  and  cases  cited ;  Barringer  &  Adams  on  Mines  and  Mining-, 
477. 

It  follows,  then,  that  the  location  of  Cantrell  and  others  was  in- 
valid, and  that  they  acquired  no  rights  thereby.     *     *     * 

W.  T.  Sidway  abandoned  his  interest  in  the  claims  held  by 
Worthen  and  others.  He  entered  into  a  contract  with  Lombard, 
Garvin  and  Andrews,  and  set  up  a  mining  claim  which  was  incon- 
sistent with  and  in  opposition  to  the  claim  of  Worthen  and  others, 
and  thereafter  failed  and  refused  to  assist  in  any  way  in  holding 
and  maintaining  the  latter  claims,  and  when  requested  to  do  so  said, 
''We  are  therefore  out  of  the  fight,"  evidently  meaning  he  had  no 
interest  in  the  claims  of  Worthen  and  others,  and  had  abandoned 
the  same,  as  shown  by  his  subsequent  acts. 

When  Sidway  abandoned  his  interest,  it  did  not  revert  to  the  gov- 
ernment. The  law  does  not  recognize  the  acquisition  from  the  gov- 
ernment of  fractional  parts  of  mining  claims.  Each  claim  must  be 
located  and  acquired  as  a  whole.  The  assessment  work  required  to 
be  done  is  entire.  One  of  the  owners  cannot  do  his  part  and  thereby 
save  his  part.  The  result  is,  if  one  co-tenant  abandons  his  interest, 
it  passes  out,  and  the  other  co-tenants  acquire  the  entire  claim  by 
compliance  with  the  statutes.     *     *     * 

So  much  of  the  decree  in  this  case  as  is  according  to  this  opinion 
is  affirmed.  The  remainder  is  reversed,  and  the  cause  is  remanded, 
with  instructions  to  the  court  to  enter  a  decree  in  accordance  with 
this  opinion. 


\  ..  McDonald  et  ai.  v.  Montana  wood  go. 


X«l  ■    ^^94-     Supreme  Gourt  of  Montana.     14  Mont.  88,  35  Pac.  668. 


i    f         Action  by  John  McDonald  and  others  against  the  Montana  Wood 
Company  for  damages  for  trespass  in  cutting  down  and  converting 
timber  on  plaintiff's  placer  mining  claim.     From  a  judgment  for 
,  -     plaintiffs,  and  an   order  denying  a  new   trial,   defendant  appeals. 
Modified. 
■^  _  Pemberton,  G.  J. 3"— On  the  23rd  day  of  September,  1890,  plain- 

ly    tiffs  (being  seven  in  number)  and  Thomas  Joyes  located  the  Land- 
j^^   lock  placer  mining  claim,  a  tract  of  ground   in  Jefferson  county, 
P^   which  they  estimated  at  the  time  contained   160  acres,  but  which 
afterwards,  by  a  survey,  was  found  to  contain  about  y6  acres.   Plain- 
/  ft,'^  ^j^g  made  but  one  discovery  on  the  entire  tract.    They  marked  the 
^ .,  boundaries  by  blazing  a  tree  at  each  corner  of  the  entire  tract  of 
-.   ground,  and  designated  each  of  said  corners  of  the  claim  by  writing^ 

^  Part  of  the  opinion  is  omitted. 


( 


-^^  «-<7w-^j^  ^    -,  j  \r  \«*)  h-ss-o-'^o'  "^''— *    *^  i-'M.-A.'^y'* 


MARKING   THE    LOCATION.  205 

with  a  pencil,  on  the  respective  blazed  trees,  the  name  of  the  claim, 
and  the  corner  each  tree  represented.  They  also  marked  a  tree  at 
the  discovery  shaft,  and  posted  a  notice  on  the  claim.  The  notice 
contained  the  names  of  all  the  locators,  and  a  description  of  the 
ground  claimed.  The  tract  of  land  so  located  was  not  in  any  way 
subdivided  into  20-acre  claims,  and  no  other  discoveries  were  made, 
or  marking  done  on  the  ground,  than  as  stated  above.  During  the 
year  1891  plaintiffs  did  work  and  made  improvements  on  the  entire 
tract  of  land  to  the  amount  of  about  $150.  The  complaint,  which 
was  filed  November  21,  1891,  charged  that  in  the  month  of  Decem- 
ber, 1890,  and  at  divers  times  between  that  date  and  the  commence- 
ment of  this  suit,  the  defendant  knowingly,  willfully,  and  maliciously 
entered  upon  said  land  without  the  consent  of  plaintiffs,  and  cut 
down  and  carried  away  a  large  amount  of  trees  and  timber  growing 
thereon,  etc.,  claiming  actual  damages  in  the  sum  of  $3,000,  and  ask- 
ing judgment  for  treble  damages  under  section  363,  Code  Civ.  Proc. 
The  answer  denies  the  title  of  plaintiffs,  and  all  the  material  allega- 
tions of  the  complaint.  The  case  was  tried  by  the  court  with  a 
jury.  The  jury  returned  a  verdict  for  plaintiff  in  the  sum  of  $549.63, 
as  actual  damages,  which  they  trebled,  making  the  sum  of  $1,648.49, 
for  which  sum  judgment  was  rendered.  Defendant  moved  for  new 
trial.  This  motion  was  overruled.  The  defendant  appealed  from 
the  judgment,  and  the  order  refusing  a  new  trial. 

The  appellant  contends  that  the  location  of  the  mining  claim  in 
the  manner  as  above  described  is  a  nullity,  and  conferred  upon  plain- 
tiffs no  right  or  title  to  the  Landlock  placer  mining  claim,  or  to  the 
right  of  possession  thereof.  The  appellant  claims  that,  under  the  law, 
the  plaintiff's  should  have  made  a  discovery  on  each  20-acre  tract 
contained  in  the  land  sought  to  be  located  ;^^  that  each  20-acre  tract 
therein  contained  should  have  been  marked  upon  the  surface  thereof, 
so  that  the  boundaries  thereof  could  have  been  readily  traced ;  that 
a  separate  location  of  each  20-acre  tract  was  necessary  under  the  law  ; 
and  that  work  or  improvements  of  the  value  of  $100  should  have 
been  done  on  each  20-acre  tract  contained  therein,  for  the  year  1891. 
Section  2330,  Rev.  St.  U.  S.,  among  other  things,  provides :  "But  no 
location  of  a  placer  claim  made  after  the  ninth  day  of  July,  eighteen 
hundred  and  seventy,  shall  exceed  one  hundred  and  sixty  acres  for 
any  one  person  or  association  of  persons."  This  statute,  it  seems  to 
us,  confers  the  right  upon  an  association  of  not  less  than  eight  per- 
sons to  locate  not  to  exceed  160  acres  in  one  claim.  This  has  been 
the  holding  and  ruling  of  the  United  States  land  department  uni- 
formly, as  far  as  we  have  been  able  to  discover;  and  patents  have 
uniformly  issued  in  such  cases  when  there  was  a  showing  of  an  ex- 

"'"But  one  discovery  of  mineral  is  required  to  support  a  placer  location, 
whether  it  be  of  twenty  acres  by  an  individual,  or  of  one  hundred  and  sixty 
acres  or  less  by  an  association  of  persons."  Land  Office  Mining  Regulations, 
rule  19.     See  Hall  v.  McKinnon,  193  Fed.  572. 


206  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

penditure  of  $500  in  work  or  improvements  upon  any  part  of  the  160- 
acre  claim.  See  Good  Return  Min,  Co.,  4  Dec.  Dep.  Int.  p.  221 ; 
also,  Moor.  Min.  Rights  (7th  Ed.),  p.  134.  In  Smelting  Co.  v.  Kemp, 
104  U.  S.  636,  Mr.  Justice  Field,  delivering  the  opinion  of  the  court, 
says :  "The  last  position  of  the  court  below — that  the  owner  of  con- 
tiguous locations,  who  seeks  a  patent,  must  present  a  separate  appli- 
cation for  each,  and  obtain  a  separate  survey,  and  prove  that  upon 
each  the  required  work  has  been  performed — is  as  untenable  as  the 
rulings  already  considered ;"  and  in  the  same  case  it  is  said :  "It 
would  be  absurd  to  require  a  shaft  to  be  sunk  on  each  location  in 
a  consolidated  claim,  when  one  shaft  would  suffice  for  all  the  loca- 
tions." In  this  case  just  cited,  Mr.  Justice  Field  is  speaking  of  the 
things  necessary  to  be  done  by  an  applicant  to  obtain  a  patent  to 
placer  mining  ground.  In  no  case,  nor  in  any  ruling  or  decision  of 
the  United  States  land  department,  that  we  have  been  able  to  find,  is 
it  held  to  be  necessary  that  a  separate  discovery,  separate  marking 
of  the  boundaries,  separate  recording,  and  separate  work  should  be 
made  and  performed  upon  each  20  acres  contained  in  a  160-acre 
placer  claim  authorized  to  be  located  under  one  location  by  an  asso- 
ciation of  persons.  If  the  plaintiffs  in  this  suit  had  made  such  a  dis- 
covery on  the  ground  in  controversy,  and  had  made  such  a  location 
thereof,  and  were  performing  such  work  and  making  such  improve- 
ments thereon  as  would  entitle  them  to  a  patent  therefor  under  the 
mining  laws  of  the  United  States,  then  they  had  such  title  and  right 
to  possession  as  would  entitle  them  to  prosecute  this  action  for  dam- 
ages for  the  trespass  complained  of. 

The  appellant  further  contends  that  the  evidence  shows  that  the 
plaintiffs  had  forfeited  any  right  or  title  they  may  have  had  to  the 
ground  in  controversy,  by  failing  to  do  the  required  amount  of  work 
thereon  for  the  year  1891.  The  evidence  in  this  case  shows  that 
work  of  the  value  of  about  $150  was  done  for  that  year  upon  the 
entire  claim.  If,  under  the  decisions  of  the  land  department  and  the 
tendency  of  the  adjudications  of  the  courts,  $500  in  work  and  im- 
provements, on  any  part  of  a  160-acre  claim,  or  any  one  of  a  number 
of  contiguous  claims,  is  sufficient  to  entitle  applicants  to  a  patent  for 
the  whole  of  such  ground  or  claims,  then,  by  parity  of  reason,  it 
would  seem  that  $100  in  work  or  improvements  expended  or  made 
upon  such  160-acre  claim  in  any  one  year  would  save  it  from  for- 
feiture. Such  seems  to  be  the  view  taken  by  the  land  offices,  and  is 
in  accordance  with  the  customs,  rules  and  regulations  of  miners  in 
this  jurisdiction.    *    *    * 

The  evidence  in  the  case  does  not  support  the  contention  that  there 
was  any  willfulness,  w^antonness,  or  maliciousness  in  the  acts  or  con- 
duct of  the  defendant.  We  therefore  think  that  the  evidence  did  not 
justify  the  rendering  of  judgment  for  treble  damages  against  the 
defendant  in  this  case.  It" is  ordered  that  judgment  by  the  court  be- 
low be  modified  by  rendering  judgment  in  favor  of  plaintiffs,  against 


the  defendant,  for  the  amount  of  actual  damages  found  by  the  jury,  <i^'-»*-*-«c 
and  in  other  respects  the  judgment  is  affirmed  as  modified.        i,"tHLi»(/! -* 


1 


»  -i.  i  Jloo 

JONES  ET  AL.  V.  WILD  GOOSE  MINING  &  TRADINtTCa  ^ 

ET  AL.  (f^VjU    I. 

1910.     Circuit  Court  of  Appeals,     ioi  C.  C.  A.  349,  177  Fed.  95.  . _.-^ 

In  Error  to  the  District  Court  of  the  United  States  for  the  Second 
Division  of  the  District  of  Alaska. 

Action  by  the  Wild  Goose  INIining  &  Trading  Company  and  Frank- 
J.  Kolash  against  Daniel  A.  Jones  and  Charles  D.  Jones.    Judgment 
for  plaintiffs,  and  defendants  bring  error.    Affirmed. 
-     Before  Gilbert  and  Morrow,  Circuit  Judges,  and  Hunt,  District 

Judge-  .  .  .       .       .      - 

Hunt,  District  Judge.'- — This  is  an  action  in  ejectment  brought 

by  defendants,  in  error,  plaintiff's  below,  to  recover  possession  of  a*-^f"^^i-'^  ' 

certain  piece  of  placer  mining  property  in  Alaska,  and  for  damages.^  u-mvv^ 

There  is  no  substantial  conflict  in  the  evidence  as  to  the  material*^  '^'^ 
facts:  On  the  ist  day  of  January,  1901,  Harry  M.  Ball  located  the'""  " -^^ 
Navajoe  placer  claim,  which,  by  the  notice  of  location,  and  the  re--    ■  '-•'^^^ 
corder's  certificate,  contained  a  tract  of  land  1,320  feet  long  and  660"'^'^^-^^  7 
feet  wide,  i.  e.,  an  area  of  just  20  acres ;  but,  as  actually  marked  upon  <  '  '  ^-^ 
the  ground  by  the  boundary  stakes,  there  was  by  inadvertence  an(^<=\/  ^'^-*' 
honest  mistake  embraced  within  the  claim  an  excess  amounting  to^^/L)  <^ 
slightly  over  2}^  acres,  so  that  the  claim  really  covered  22.531  acres,,  ^^^^>y     I 
instead  of  the  20  acres  allowed  by  law.  w^      t"«^ 

The  Wild  Goose  Mining  &  Trading  Company  and  Frank  J.  '^  Xll.- 
Kolash,  defendants  in  error,  succeeded  to  the  title  of  the  locator  t«-.w^MA^ 
Ball  prior  to  the  commencement  of  this  action.    *    *    *  -jlx^iJ^  Ca, 

Upon  measuring  the  boundary  lines  of  the  Navajoe  [in  the  course  .^^^^..jyj^  I 
of  negotiations  for  a  lease],  plaintiff  in  error  Daniel  A.  Jones,  who  cv.j-^x.5^ 
is  a  civil  engineer  and  surveyor,  found  that  they  were  too  long,  and  |^^_^^  i^ 
that  consequently  the  claim  was  excessive  in  area,  containing  "^oreyj^^^^^ 
than  the  legal  20  acres.  He,  therefore,  directly  proceeded  to  make^^j;^  ^;^^_^ 
an  accurate  survey,  and  having  thereby  determined  that  the  Navajoe,  t^^i^y  ^j 
as  located  on  the' ground,  included  22.531  acres,  he  did  on  August  j,,^^^  ^^^^^ 
1 2th,  without  having  given  the  defendants  in  error  any  notice  of  his.  ^^  <U_r»M 
discovery  of  the  fact  that  the  Navajoe  was  excessive  in  area,  go  to  _  0^  ^^  , 
the  Navajoe  claim  and  select,  locate,  and  stake  a  portion  thereof  as""'  "^  ^ 
the  "Papoose  fraction,"  a  triangular  tract  embracing  2.531  acres  ^^^^Jf 
the  northeasterly  portion  of  the  Navajoe  claim,  which  amount  he'*^^-*-^  "^ 

"  Parts  of  the  opinion  are  omitted.         Jrwcx^C^  tk^   (jr.X^.'uJ^i^^.Aji^ .    \y^   < 


-  '..     208  LOCATION  OF  lode/ AND  PLACER  CLAIMS. 

K 

y__  V  had  ascertained  was  the  excess  area  included  within  the  original 
^^^  Navajoe  boundaries,  and  which  particular  piece  of  ground  he  pre- 

^^sJ^aJ*^^  ,  f erred  to  any  other  in  the  Navajoe  claim.  Immediately  upon  locating 
ry^  %  the  Papoose  fraction,  plaintiffs  in  error  assumed  possession  thereof 
J^  ']y  and  went  to  work  sinking  a  shaft,  and  prosecuted  work  thereon 
JVk.  i"^^^  until  during  the  latter  part  of  September,  1908,  when  they  made  a 
^(y>.^t  tv(  discovery  of  a  few  colors  of  placer  gold,  and  followed  this  up  with 
\4  i'lfx^  a  discovery  of  gold  in  paying  quantities  about  October  ist. 
^  ^  '^  There  is  a  conflict  of  testimony  among  the  witnesses  as  to  the  exact 

-  t  /\  date  when  the  Navajoe  owners  became  apprised  of  the  fact  that  their 
f  t»^^^  claim  was  excessive  in  area,  and  that  the  plaintiff  in  error  had  located 
^  .«„  and  staked  the  Papoose  fraction.  It  is  admitted,  however,  that  they 
"^  *^  ^  had  no  knowledge,  and  that  no  notice  thereof  was  given  to  the  own- 
■^  [r"**^  ers  of  the  Navajoe  by  the  plaintiffs  in  error,  until  after  location 
k  K^   and  staking  of  the  Papoose  fraction. 

Ips.*^        On  August  21  or  22,  1908,  T.  M.  Gibson,  a  representative  of  the 

jCwnjuv-I  ^^^d  Goose  Mining  &  Trading  Company,  in  a  conversation  with 

.        said  Jones,  asked  the  latter  to  pull  up  the  stakes  marking  the  Papoose 

■^-^  fraction,  for  the  reason  that  "the  owners  of  the  Navajoe  did  not  want 

,\f«..v'.    to  cast  off  the  excess,  if  any  there  was,  just  the  way  he  had  staked 

'  "i^vCi   it»  t)ut  if  he  would  take  up  his  stakes,  they  would  cast  off  the  excess 

Uj»^^-^  where  they  thought  it  best  to  do  so,  and  that  then  he  could  take  it 

C7>!^     if  he  wanted  to."    Jones  refused  to  comply  with  such  request.  There- 

"^!'^'''^*, after  on  November  7,  1908,  defendants  in  error  caused  the  Navajoe 

'^-'^^    claim  to  be  surveyed,  and  thereupon  cast  off  2.54  acres  from  the 

v.^^^C9^  southeasterly  portion  of  the  claim,  and  made  an  amended  location  of 

fn^JA  the  claim,  of  the  remaining  20  acres.     On  November  12,  1908,  one 

W.  H.  Lonagan,  acting  in  behalf  of  the  Wild  Goose  Mining  &  Trad- 

'*^T!r*'^ing  Company,  located  and  staked  the  excess  so  cast  off  as  the  "pump 

C'*^^*-^      fraction." 

^^^^_^^^_^^,  At  the  close  of  the  testimony,  plaintiffs  moved  the  court  to  direct 
A  |E-  the  jury  to  bring  in  a  verdict  for  plaintiffs.  This  request  was 
^''^J^*'^*^  granted,  and  the  jury,  pursuant  to  the  court's  instructions,  found  for 
JkjB"^  the  plaintiffs.  Judgment  was  entered  in  accordance  therewith,  and 
V-^.i,,ifrf  defendants  sued  out  this  writ,  assigning  for  errors  the  action  of  the 
court  in  sustaining  plaintiff's  motion,  and  instructing  the  jury  to 
return  a  verdict  in  favor  of  the  plaintiffs,  and  in  entering  judgment 
upon  the  verdict  of  the  jury,  and  in  overruling  defendants'  motion 
for  a  new  trial. 
,/w  The  law  under  which  mining  locations  may  be  made  is  to  be  found 
:  ^  ^  in  chapter  6  of  title  32,  Rev.  St.  (U.  S.  Comp.  St.  1901,  pp.  1422- 
fl   1         1442).    By  section  2322  it  is  provided  that: 

r*^-^""^  "The  location  of  all  mining  locations  *  *  *  qj^  any  mineral  vein,  lode 
-•^j.-^  ^or  ledge,  situated  on  the  public  domain,  *  *  *  s^aH  have  the  exclusive 
I  Caj  i^  right  of  possession  and  enjoyment  of  all  the  surface  included  within  the  lines 
[  ft*.       of  their  locations.    *    *    *"  ^  v      r 

--<r^  ^x^  (rj-^L^ .  -^ ^  ''M  x5«=>~^  'M^La-'V  'ftvjL>4  c^^^Jji  0-^ 


•W' 


MARKING   THE   LOCATION.  209 

.;■     -     ^ 

And  by  section  2329  it  is  provided  that :  ^^  «-v^.v^-wv^ 

"Claims  usually  called  'placers'  including  all  forms  of  deposits,  excepting  '|t!  jJ,X.  S 
veins  of  quartz,  or  other  rock  in  place,  shall  be  subject  to  entry  and  patent,  l^^  ^^^^ 
under  like  circumstances  and  conditions,  and  upon  similar  proceedings,  as  '~:^^--*-i.*'^ 
are  provided  for  vein  or  lode  claims."  ',  <--^^ 

In  a  late  case,  Clipper  Tvlining  Co.  v.  Eli  Mining  &  Land  Co.,  194  :/*^^' 
U.  S.  220,  24  Sup.  Ct.  632,  48  L.  Ed.  944,  the  Supreme  Court,  com-  ^-fixu**-- 
mentinof  on  these  sections,  says:  vxAam>? 

"It  will  be  seen  that  section  2322  gives  to  the  owner  of  a  valid  lode  location^ 
the  exclusive  right  of  possession  and  enjoyment  of  all  the  surface  included 'fdiU;^'r-v»>- 
within  the  lines  of  the  location.     That  exclusive  right  of  possession  forbids«auVX-«^-^ 
any  trespass.     No  one  without  his  consent,  or  at  least  his  acquiescence,  can|-  j^^^  j  A . 
rightfully  enter  upon  the  premises  or  disturb  its  surface  by  sinking  shafts  or  _.     I 

otherwise.  *  *  *  That  exclusive  right  of  possession  is  as  much  the  prop- »'*'''-*a*-*^  ^ 
erty  of  the  locator  as  the  vein  or  lode  bv  him  discovered  and  located.  *  *  *crVN>  ^^J\S^ 
In  Belk  v.  ^^leagher,  104  U.  S.  283  [26  L.  Ed.  735],  it  was  said  by  Chief  Jus-  *  --".-  #h 
tice  Waite  that  'a  mining  claim  perfected  under  the  law   is  property  in^the  | 

highest  sense  of  that  term,'  and  in  a  later  case  (Gwillim  v.  Donnellan,  115  U.  ; -^'^  ' 
S.  45,  49  [5  Sup.  Ct.  1110,  1112,  29  L.  Ed.  348]),  he  adds:    'A  valid  and  sub- i,^(l«Vfr-«  ^ 
sisting  location  of  mineral  lands,  made  and  kept  up  in  accordance  with  the  ^^^  ^^^^s 
provisions  of  the  statutes  of  the  United  States,  has  the  effect  of  a  grant  by    'f*' 
the  United   States  of  the   right  of  present  and  exclusive  possession  of  theA^^Ce."  ^ 
lands  located.     If,  when  one  enters  on  land  to  make  a  location,  there  is  an-j^ 
other  location  in  full  force,  which  entitles  its  owner  to  the  exclusive  posses-   ,  ^    >  , 
sion  of  the  land,  the  first  location  operates  as  a  bar  to  the  second.'     In  St. --'-^-^   ♦- 
Louis  Alining  Co.  v.  Montana  Alining  Co.,  171  U.  S.  650,  655  [19  Sup.  Ct.  61,  y^JSsu^ 
63   (43  L.  Ed.  320)],  the  present  Chief  Justice  declared  that:    'Where  there  ;^^^^^_j^_^^^j^ 
is  a  valid  location  of  a  mining  claim,  the  area  becomes  segregated  from  the  -  ,  ™^ 
public  domain  and  the  property  of  the  locator.     *     *     *     And  this  exclusive^tiVl  C*J»^ 
right  of  possession  and  enjoyment  continues   during  the   entire   life  of  the]^^^  UtP 
location.'  "  .^Cj^^aUa^  ' 

Vi  tj-tnSu 

Again,  in  Belk  v.  T^Ieagher,  104  U.  S.  279,  26  L.  Ed.  735,  the  Su-^tv.^^*j>  C 

preme  Court  has  said :  f-:.i>-t-e  ^^ 

"Mining  claims  are  not  open  to  location  until  the  rights  of  a  former  locator 
have  come  to  an  end.     A  relocator  seeks  to  avail  himself  of  mineral  in  the 
public  lands  which  another  has  discovered.     This  he  cannot  do  until  the  dis- 
coverer has  in  law  abandoned  his  claim,  and  left  the  property  open  for  another  ^ 
to  take  up.    The  right  of  location  upon  the  mineral  lands  of  the  United  States 
is  a  privilege  granted  by  Congress,  but  it  can  only  be  exercised  within  the                   ^ 
limits  prescribed  by  the  grant.     A  location  can  only  be  made  where  the  law^^v.^^V',  Q 
allows  it  to  be  done.     Any  attempt  to  go  beyond  that  will  be  of  no  ^vaiL.             L 
Hence  a  relocation  on  lands  actually  covered  at  the  time  by  another  valid  andTVOw»  #^v 
subsisting  location  is  void;  and  this  not  only  against  the  prior  locator,  but  all  ^  ^^f^   yv. 
the  world,  because  the  law  allows  no  such  thing  to  be  done."                               #-^ 


These  principles  of  law,  long  settled  and  unambiguous,  are  thecmj-vfe^A- 
les  that  must  be  invoked  for  guidance  in  the  determination  of  the  ^^^^^^^^^^^^^^ 
igle  question  presented  for  decision  by  the  record  in  this  case,  and  ^^^ 
at  is :  The  right,  as  between  the  parties  to  this  action,  to  the  pos-^^,^.^^ 


14_MlXING  L.\w     l-^-^A>«H   VI  -^^  -     S7     1^. 

^w^  u..-aJL  U-«uoe  VU^^-fu-v^-vY^  Vt-C>-5r^  ^-'  ^  '■^'^^ 


_,^l»H-»l».l/  III   ^~^ 

;.:/'' ^lO      ,     LOCATION  OF  LODE  AND  PLACER  CLAIMS.  . 

session  of  the  ground  embraced  within  the  so-called  "Papoose  trac- 
tion" location.  It  is  evident,  from  the  decisions  of  the  Supreme 
Court  above  cited,  that,  if  the  location  by  Jones  of  the  Papoose  frac- 

-  ■  ^A     tion  was  void  and  invalid,  then  no  possessory  rights  were  initiated 

^i^X*r,  .^"cl  he  acquired  none. 

'i         0  ' '  In  Waskey  v.  Hammer,  170  Fed.  31,  34,  95  C.  C.  A.  305,  308,  this 

=ij/%  -     court  said  : 

"A  location  made  in  good  faith  and  otherwise  conformable  to  law  is  not  ren- 
dered wholly  void  by  reason  of  such  excess ;  but  that  the  excessive  area  only 
is  void  is  well  settled.  And  that  such  locator  is  at  liberty  to  select  the  por- 
tion of  the  claim  that  he  will  reject  as  such  excess  is  also  established  law." 

And  in  Walton  v.  Wild  Goose  Mining  &  Trading  Co.,  123  Fed. 
218,  60  C.  C.  A.  144,  this  court,  through  Judge  Hawley,  regarded  an 
excess  of  20  acres  in  the  location  of  a  placer  claim  as  not  invalidating 
the  location,  but  merely  rendering  it  voidable  as  to  the  excess.  The  1 
same  doctrines  are  announced  in  Zimmerman  et  al.  v.  Funchion  et  al., 
161  Fed.  859,  89  C.  C.  A.  53,  and  Mcintosh  v.  Price,  121  Fed.  716, 
58  C.  C.  A.  136. 

Applying  the  above  principles  of  law  to  the  facts  in  the  case  at  bar, 
it  is  apparent  that  Jones,  at  the  time  he  staked  the  Papoose  fraction, 
was  a  wrongdoer,  and  an  intruder  and  trespasser  upon  the  possessory 
rights  of  the  defendants  in  error  in  and  to  the  Navajoe  claim ;  and 
that  his  attempted  location  of  the  Papoose  fraction,  at  the  time  and 
in  the  manner  he  did,  was  a  nullity  and  void  for  any  purpose,  and 
initiated  no  rights  whatsoever  in  him,  for  the  reason  that  the  ground 
covered  by  such  attempted  location  was,  at  the  time  that  location  was 
made,  in  the  eye  of  the  law,  in  the  exclusive  possession  of  the  defend- 
ants in  error,  under  a  valid  and  siibsisting  location,  and  they  were 
unaware  of,  and  had  not  been  notified  of,  the  excess,  by  the  plaintiffs 
in  error,  nor  were  they  given  any  opportunity  to  exercise  their  right 
to  select  and  cast  off.  Until  they  had  received  such  notice,  and  were 
given  an  opportunity  to  exercise  such  right,  the  whole  claim,  in- 
cluding any  excess  due  to  honest  mistake  and  free  from  fraud,  was 
so  far  segregated  from  the  public  domain  as  to  exempt  it  or  any  part 
thereof  from  relocation.  In  Kendall  v.  San  Juan  Mining  Co.,  144 
tJ.  S.  663,  12  Sup.  Ct.  779,  36  L.  Ed.  583,  a  case  involving  the 
validity  of  a  location  of  a  mining  claim  upon  an  Indian  reservation 
which  had  been  set  apart  for  "the  absolute  and  undisturbed  use  and 
occupation  of  the  Indians,"  the  Supreme  Court  used  the  following 
pertinent  language :  _  ,  ^ 

"The  effect  of  the  treaty  was  to  exclude  all  intrusion  for  mining  or  other 
private  pursuits  upon  the  territory  thus  reserved  for  the  Indians.  It  pro- 
hibited any  entry  of  the  kind  upon  the  premises,  and  no  interest  could  be 
■  claimed  or  enforced  in  disregard  of  this  provision.  Not  until  the  withdrawal 
of  the  land  from  this  reservation  of  the  treaty  by  a  new  convention  with  the 
Indians,  and  one  which  would  throw  the  lands  open,  could  a  mining  location 

.w^^^^  c*~p|r  en^z^'  (nc<j^-^  pq^^i^^  cxTt-Aiyiw 


■**y*-«^*-^     '-'    '  5K  MARKING   THE   LOCATION.  211  ^Ij^^y 

thereon  be  initiated  by  the  plaintiffs.     The  location  of  the  Bear  lode,  having  ^ 
been  made  whilst  the  treaty  was  in  force,  was  inoperative  to  confer  any  rights  (S'^-^"^^''~( 
upon  the  plaintiffs.     *     *     *     Had  the  plaintiffs  immediately  after  the  with-  "p^//!^)  • 
drawal  of  the  reservation  relocated  their  Bear  lode,  their  position  would  have  '     DT  ■ 
been  that  of  original  locators,  and  they  would  then  have  been  within  the  ruleU_-frn/    «a. 
in  Noonan  v.  Caledonia  Mining  Co.,  121  U.  S.  393  [7  Sup.  Ct.  911,  30  L.  Ed.       Vj- 
1061]."  Lrv^— «■ 

So  in  the  case  at  bar,  had  the  plaintiff  in  error  Jones,  after  giving  l^-^-o.A' 
the  owners  of  the  Navajoe  notice  of  the  excess,  waited  a  reasonable  ^Jt^  o--* 
time  for  them  to  exercise  the  right  to  select  and  cast  off,  and  then    y^r^,,^ 
relocated  the  Papoose  fraction,  a  very  different  question  would  be  ^j-'^ , 
presented,  and,  by  a  subsequent  discovery,  he  might  then  perhaps, T*""^-' 
have  brought  himself  within  the  rule  announced  in  Mining  Company  (A  Ai^' 
V.  Tunnel  Company,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501.  ;-^,..>- 
This,  however,  he  did  not  do,  but  relied  upon  his  location  of  August 
12,  1908,  and  this  we  hold  was  a  nullity,  initiating  no  rights;  for,     . 
again  to  follow  the  doctrine  of  the  Supreme  Court,  the  right  to  the 

possession  of  mining  property  comes  only  from  a  valid  location ;  if        

there  is  no  location,  there  can  be  no  possession  under  it.    "A  location       ',     ' 
to  be  eft'ectual  must  be  good  at  the  time  it  is  made."    Belk  v.  Mea-  1,,,,.^. 
gher,  104  U.  S.  284,  26  L.  Ed.  735.    Consequently,  a  location  void  at  ^  i>^SAM 
the  time  it  is  made,  because  made  on  a  claim  valid  and  subsisting,  J  >    „ 
continues  and  remains  void,  and  is  not  cured  or  made  effectual  by 
subsequent  discovery.  ->.>."    v 

The  conduct  of  plaintiffs  in  error  in  the  location  of  the  Papoose<io-4-k  W 
fraction,  as  appears  from  the  record,  was,  in  our  opinion,  unjustifi-U,j^\,,^ 
able,  and  is  not  to  be  sanctioned.    Moreover,  as  Chief  Justice  Waite  » ^  |    u 
said :  v      •  "^ 

"To  hold  that,  before  the  former  location  has  expired,  an  entry  may  be  rnadej„.^^^,^_;.;^^ 
and  the  several  acts  done  necessary  to  perfect  a  relocation,  will  be  to  encour- .  .^ 

age  unseemly  contests  about  the  possession  of  the  public  mineral  bearing  lands ^*-*-  'J 
which 'would  almost  necessarily  be  followed  by  breaches  of  the  peace."     Belksiycsot^ 
„,, V.  Meagher,  104  U.  S.  285,  26  L.  Ed.  735.  -SCt  <^^'^j<^"  /  lij*/  V  J!^  f  c 

^     »  The  decision  which  we  have  thus  reached  renders  it  unnecessary  (>-«m.'  ^ 
to  consider  and  determine  the  other  questions  presented  in  counsel's  (,ji-<^i 
briefs.  _     _       -,,....  ^ 

J,  The  action  of  the  District  Court  for  Alaska  in  sustaining  plaintiffs'  '       '     ", 

r1  '  motion  to  direct  a  verdict,  and  in  entering  judgment  on  the  verdict, 
"'Q     was  right,  and  it  is  affirmed.  _      ■>  '  ''  '  ~**" 

Gilbert,  Circuit  Judge  (dissenting).     Conceding  that  the  plain- ^;^^  \^i 
4t>  tiffs  in  error  could  not  lawfully  make  their  location  at  the  time  when  ,|  L  ^.^ 
j^      they  attempted  to  make  it,  the  question  still  remains  whether  or  not  M  ^ 
"^^  the  defendants  in  error  had  at  the  time  of  the  commencement  of  the 
A*^  Action  such  title  that  they  could  maintain  ejectment  against  the  plain- 
tiffs  in  error  who  were  "in  possession  of  the  disputed  premises.    The    ;, 

-KmJI/  tOt^M^    V„i^xi^^   U    J5iO^   coo^    >- 


/  1^    LOtATTON   OF    LODE   AND  PLACER   (fLAIMS.  ^ 


^^^  _  plaintifl'  in  ejectment  must  recover,  if  at  all,  on  the  strength  of  his 

-  ^  own  title  and  not  on  the  weakness  or  defect  of  his  adversary's  title. 

^^"^  In  the  absence  of  fraud  or  bad  faith,  a  mining-  claim  which  includes 

•'•"  ■•^'  more  ground  than  the  law  allows  is  not  entirely  void,  but  is  void  only 
as  to  the  excess.  Such  is  the  language  of  numerous  decisions  and  of 
the  text-writers.    The  question  arises  :    What  portion  of  the  excessive 

,  claim  shall  be  deemed  to  be  the  excess  ?    In  the  case  of  a  lode  claim 

"■       ;  located  under  regulations  or  a  statute  limiting  the  side  lines  to  a  cer- 

"t-tyu  tain  width  on  each  side  of  the  vein  or  the  discovery  shaft,  if  the 

■U^  f,  claim  as  marked  is  of  greater  than  the  permitted  width,  it  is  easy  to 

l^^J.^^^  ascertain  where  and  what  is  the  excess,  and  it  would  seem  that  the 

T"'  excess  is  open  to  immediate  location  by  another.     Taylor  v.  Par- 

^>  '  enteau,  23  Colo.  368,  48  Pac.  505;  Lakin  v.  Dolly  (C.  C.)  53  Fed. 

'"^^  ZZZ'^  Bonner  v.  Meikle  (D.  C.)  82  Fed.  697-705.     In  Hausworth  v.    ^ 

'C  Butcher,  4  Alont.  299,  i  Pac.  714,  the  court  said :  l|/Vv/K^  ' 

,,__/^ "The  boundaries  must  be  so  definite  and  certain  as  that  the}^  can  be  readily     ^ 

^1  traced,  and  they  must  be  within  the  limits  authorized  by  law  ;  otherwise  their     *><^ 

^■**^  purpose  and  object  would  be  defeated.     The  area  bounded  by  a  location  must  f\  ^ 

w^^  be  within  the  limits  of  the  grant.     No  one  would  be  required  to  look  outside 

"^!^  of  such  limits  for  the  boundaries  of  a  location.    Boundaries  beyond  the  maxi-  4v-, 

L  U  mum  extent  of  a  location  would  not  impart  notice  and  would  be  equivalent 

t^  ^  to  no  boundaries  at  all."  /iTv^ 


But  in  the  case  of  a  placer  claim,  where  the  only  limitation  is  that 
it  shall  not  exceed  20  acres,  the  precise  part  that  shall  be  deemed  the    y^ 
excess  is  not  ascertained  until  the  locator  in  the  exercise  of  his  right, 
^ /?       on  discovering  that  his  claim  is  excessive,  has  readjusted  his  lines  so  ^rv^ 
as  to  exclude  the  excess.     It  is  the  logical  deduction  from  the  deci- 
f  <'Cr"*^sions  that,  if  the  original  location  was  fraudulently  made  excessive, 
'^^        it  is  void  in  toto.    If  this  be  true,  it  would  seem  that  if,  after  discov- 
,^_,    ering  that  his  claim  is  excessive,  the  locator  willfully  continues  to 
^  maintain  his  lines  as  marked  upon  the  ground,  and  fails  within  a  rea- 

f^.ttt^-    sonable  time  to  cast  ofif  the  excess,  he  places  himself  in  the  attitude 


■n-'^ 


of  fraudulently  asserting  claim  to  a  location  greater  in  area  than  the 
l^        law  permits,  the  resulting  invalidity  of  which  would  be  the  same  that 
"V      it  would  be  if  he  had  made  the  claim  fraudulently  excessive  in  the 
■'^^jT  first  instance.     The  defendants  in  error  in  this  case  failed,  for_  af 
*^*^     period  of  nearly  three  months  after  notice  that  their  claim  was  "ex-i  ^ 
T_'  '    cessive,  to  alter  their  lines  so  as  to  conform  to  the  legal  requirements/  J- 
//  ^      This  failure  to  act,  in  my  opinion,  amounted  to  an  active  and  inten- 
tional assertion  of  an  excessive  claim,  and  I  submit  it  should  be  helc, 
that  thereby  the  location  became  void. 

But  whether  this  conclusion  is  correct  or  not,  in  any  proper  view 
of  the  facts  and  the  law  applicable  thereto  the  defendants  in  error 
are  still  fraudulently  asserting  an  excessive  claim.    The  only  portion 
of  their  claim  which  they  have  cast  off  is  that  portion  on  which  was  I  T 
'"'  "      their  posted  notice  of  location,  their  discovery  shaft,  and  all  their  ' 

I  t-^-^-Oi,  ^^>Jpt  tlMA^    krJLo^^ASw  t  v^•'^•^  •V'^oi-^t.vM 
-SiA>4vty»  i-UtS-^  <?<&v.-tL +u^  <*^-v-vu-v      '^     "^     '•  <4-*^^"  '^-^ 


v^^ 


•  extensive  workings,  and   from   which  practically  all  the   gold   ex-  f-OLt  K » 
tracte'd'Tfom  the  claim  since  its  location  had  been  taken,  and  upon  ^.   ,.^.  » 
.    which  they  had,  at  the  time  of  relocating  their  lines,  ceased  their  ^^      ''j 
i  '  mining  operations.    To  cast  off  this  portion  of  the  claim  as  excess  is  ^S'^^   - 
but  another  way  of  maintaining  a  claim  to  the  whole  location  as  it  ^^'Lv^ 
was  originally  made.    To  hold  that  a  locator  of  an  excessive  location  T    "   v 
^may  exhaust  the  mineral  from  a  portion  thereof,  cast  off  that  portion  *"*-'*-*'  ^ 
as  the  excess,  and  hold  the  remainder,  would  be  to  open  the  door  to     ' 
fraudulent  location,  and  would  be  tantamount  to  deciding  that  such   .   _   .., 
a  locator,  if  he  can  succeed  in  working  out  a  portion  of  the  claim  ^  T^ 
before  notice  is  brought  to  him  that  his  claim  is  excessive,  may  sue-  ^.  \      \ 
cessfully  locate,  hold,  mine,  and  exhaust  a  placer  claim  of  greater  ^•'^^    ' 
area  than  the  law  allows.    To  hold  so  would  be  to  render  nugatory  M>.^cjJ 
the  express  object  of  the  mining  laws  which  limit  the  size  of  placer   . ,,         s 
locations,  and  would  permit  the  miner  to  profit  by  his  own  wrong.  ^"^""i 

In  view  of  these  considerations,  I  submit  that  the  defendants  in  ^^  ^ 
error  had  no  title  or  right  of  possession  on  which  they  could  recover '""^^a.-^r, 
in  ejectment,  and  that  the  trial  court  erred  in  directing  a  verdict  for  ^  U     \ 
the  defendants  in  error.  c\   \        •  ^      ^\ 

^  ^  HARPER  V.  HILL  et  al./^  ^  ^V^f^^^  " 

y}  191 1.    Supreme  Court  of  California.    159  Cal.  250,  113  Pac.  162.  X~u^  1 


:^ 


Action  by  H.  A.   Harper  against  Seymour  Hill  and  another.    , 
From  a  judgment  for  plaintiff,  and  from  an  order  denying  a  new  O^*-*-*^ 
trial,  defendants  appeal.    Reversed.  C>^  >-*-J 

Shaw,  J.^^ — *     *     *     The  plaintiff'  sued  to  recover  possession  of^ 
a  mining  claim  known  as  the  "Santa  Ynez  gold  mine."  The  principal ^'''^-'*^   ^ 
controversy  is  in  regard  to  the  respective  rights  of  the  plaintiff  and  ^^t-n/t  >  * 
defendants  to  the  southerly  part  of  said  Santa  Ynez  claim  which  ^        t^ 
overlaps  the  northerly  part  of  a  mining  claim  located  by  the  defend-  'H-^^'fe^ 
-^      ants  known  as  the  "Lookout  quartz  claim."     *     *     *  )>cJ^-  {, 

v  The  Lookout  claim  was  located  and  marked  on  the  ground  in 

1889  by  the  defendants,  and  ever  since  that  time  they  have  claimed  ^^^  ^ 
possession  of  it  and  have  done  the  work  required  by  law.  The  Santa  VV^f  1 
Ynez  was  located  and  marked  by  the  plaintiff  on   September  21,  j. 

1904.     His  claim  of  right  to  include  in  it  a  part  of  the  ground  cov- ^"^'^"''^''^ 
ered  by  the  Lookout  claim  is  based  on  the  theory  that  the  southerly  t,47Lf  r-^ 
line  of  the  latter  is  situated  more  than  300  feet  from  the  actual  linoi,.,^//) ^ 
of  the  apex  of  the  Lookout  lode  or  vein.     The  facts  appear  to  be       j^f 
that  in  1889,  when  the  defendants  made  the  original  discovery  and  '    ij 

location  of  the  Lookout  mine,  they  put  monuments  at  each  end  of  ^*<"*^*  ' 
the  claim  at  the  place  where  they  then  believed  the  apex  of  the  vein  to\ai<>—^''' 

«  Parts  of  the  opinion  are  omitted.       t^'i  ^-^-^^V-*^     1^,^.  vVl.^.^  iU>w   fv 


-      ,     214  LOCATION    OF    LODE   AND    PLACER   CLAIMS.  ^ 

Vik       be.    Corners  were  marked  at  each  end  at  a  distance  of  300  feet  from 

ii^.f,     the  end  center  monuments  so  placed,  thus  marking*  a  claim  1,500 

'       "     feet  long  and  600  feet  wide,  as  the  law  provides  and  allows.    At  the 

^f*'     trial  evidence  was  introduced  tending,  as  it  is  claimed,  to  prove  that 

1^  ■'     the  monument  so  placed  at  the  center  of  the  east  end  of  the  claim 

■     *  ,     had  not  been  placed  on  the  apex  of  the  Lookout  vein,  but  was  located 

"*    *'■'  some  23  feet  south  of  said  apex.    The  findings  describe,  as  the  true 

.  *>-,  .    line  of  the  apex,  a  line  running  from  the  east  line  westerly  through 

^     the  claim.    This  line  at  its  easterly  end  lies  northerly  of  the  line  in- 

^  ^      dicated  as  such  by  the  original  center  end  monuments.     The  court 

.  i  -.      below  was  of  the  opinion  that  the  actual  line  of  the  apex  as  disclosed 

,i,         by  the  evidence  at  the  trial  should  control  the  boundaries  of  the 

claim,  that  the  defendants  had  the  right  to  only  three  hundred  feet 

south  of  that  line  on  the  surface,  and  that,  as  the  original  southerly 

^^.j.-.:.  \  line  was  located  more  than  that  distance  from  the  true  line  of  the 

^i-^*^^  apex  of  the  vein,  such  original  line  must  be  drawn  in  and  the  excess 

'  "*      "  given  to  the  plaintiff  under  his  later  location.     The  main  question  is 

>tt«^4-^  whether  the  surface  location  and  boundaries  of  a  mining  claim  are 

i        to  be  determined  by  the  position  of  the  apex  of  the  vein  as  it  is  as- 

^     .' '  'certained  and  marked  on  the  ground,  in  good  faith,  at  the  time  the 

*''^     claim  is  originally  located  and  marked,  or  by  the  real  position  of 

{   *<  •     such  apex  as  it  may  be  subsequently  proven  to  be,  in  a  trial  with  an 

\^      adjoining  claimant. 

^^^_^/  Section  2320  of  the  United  States  Revised  Statutes  (U.  S.  Comp. 
♦  vpv  St.  1901,  p.  1424),  so  far  as  material  to  the  question,  is  as  follows: 
pT*^  "A  mining-claim  located  after  the  tenth  day  of  May  eighteen  hun- 
I  t't Y  dred  and  seventy-two,  whether  located  by  one  or  more  persons,  may 
*A  ^-vlt  equal,  but  shall  not  exceed,  one  thousand  five  hundred  feet  in  length 
1%I^     along  the  vein  or  lode;  but  no  location  of  a  mining-claim  shall  be 

4         made  until  the  discovery  of  the  vein  or  lode  within  the  limits  of  the 
vein  located.     No  claim  shall  extend  more  than  three  hundred  feet 
if,  ■     on  each  side  of  the  middle  of  the  vein  at  the  surface.     *     '^'     *     The 
^^^     end  lines  of  each  claim  shall  be  parallel  to  each  other."    Section  2322 
-fci)        (page  1425)  provides  that  the  locators  of  a  mining  location  "on  any 
^^0^     mineral  vein,  lode,  or  ledge,"  on  the  public  domain,  so  long  as  they 
*"      comply  with  the  laws  of  the  United  States  and  local  regulations  con- 
sistent therewith,  "shall  have  the  exclusive  right  of  possession  and 
enjoyment  of  all  the  surface  included  within  the  lines  of  their  loca- 
f        tions,  and  of  all  veins,  lodes  and  ledges  throughout  their  entire 
i>jt^       depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  tyi~ 
iM       tended  downward  vertically"  although,  below  the  apex,  such  veins, 
V  lodes,  or  ledges  may  diverge  beyond  the  side  line  planes,  but  not 

where  they  go  outside  the  end  line  planes.     Section  2324   (page 
T426)  provides  that  "the  location  must  be  distinctly  marked  on  the 
ground  so  that  the  boundaries  can  be  readily  traced,"  and  that  all 
'  V    records  of  mining  claims  shall  contain  "the  date  of  the  location,  and 

'u.^-^  i  1  '^MfxU  trA-t  uj4  '    'To  Ox 


fiv^ 


_  MARKING   THE   LOCATION.  1  21$  Vv>-»L> 

suc|i"a  description  oi  the  claim  or  claims  located  by  reference  to 
some  natural  object  or  permanent  monument  as  will  identify  the 
claim."     Sections  2325  and  2326  (pages  1429  and  1430)  provide,  in  •     '      ^ 
substance,  that  the  owner  of  such  mining  location  may  obtain  a  pat-  --     ^  *-r 
ent  from  the  United  States  therefor  by  procuring  the  Surveyor  Gen-^|^  y„^_;^ 
eral  to  survey  and  plat  the  same,  filing  an  application  in  the  proper  ,^  ^ 
land  office  and  giving  notice  as  directed.     It  is  declared  in  section 
2325  that  "a  patent  for  any  land  claimed  and  located  for  valuable  de- 
posits may  be  obtained" ;  that  any  person  "having  claimed  and  lo-    .  , 
cated  a  piece  of  land"  may  file  application  for  a  patent  therefor.  .'  t. 

The  grant  of  the  exclusive  right  of  possession  and  enjoyment  of  Kii.^ 
the  ground  included  within  the  lines  of  the  location  is  a  present  l^^_>jC.» 
grant  which  takes  effect  as  soon  as  the  location  is  legally  made.    It  vT 
refers  to  the  Hnes  as  then  estabhshed,  and  gives  the  right  to  thep-^^t^^f— 
ground  inclosed  thereby.    The  necessary  implication  of  the  language'     ■' )'    '  ^ 
is  that  the   "surface  included  wathin  the  lines  of  their  locations" 
w^iich  they  have  an  immediate  right  to  possess  and  enjoy  is  the  sur-|^  -     "* 
face  as  then  "distinctly  marked  on  the  ground."    The  statement  that  Ujj^^  ^ 
"no  claim  shall  extend  more  than  three  hundred  feet  on  each  side  o^^k->^ 
the  middle  of  the  vein  at  the  surface,"  if  taken  strictly  and  literally, (^^i 
might  seem  to  refer  to  the  actual  position  of  the  apex,  rather  than  to  *^  ' ;  '  '^ 
the  place  marked  as  such  by  the  locator.    But  the  other  provision^'  •'  -^  T 
require  a  different  interpretation.  -Ko*  S.i 

The  reference  is  to  the  vein  as  honestly  marked  by  the  claimant  at  CvcaIih 
the  time  as  the  center  of  the  claim  of  which  he  then  takes  possession.  ^..^,^»^ 
There  are  also  practical  reasons  which  forbid  such  literal  construe- .*j^w^^ 
tion.    Lodes  or  veins  frequently  do  not  appear  upon  the  surface  ex-    *'*^<' 
cept  at  intervals.     Sometimes  they  may  not  appear  at  all.    The  true      '•^l^'- 
apex  or  middle   of  the  vein  may  not  be   accurately   determinable  "u^cl*^ 
except  by  extensive  excavations.    The  eastern  end  of  the  vein  of  the  u-'i^Jwv^ 
Lookout'  mine  was  covered  with  soil  at  the  time  of  the  location.  ^  Its  ^^  J„^^j^. 
true  position  was  only  disclosed  by  subsequent  excavations,  and  it  is"]"       ,^ 
still  in  dispute.     Such  veins  do  not  run  in  straight  lines  throughout  • 
their  courses,  but  Vv^ith  many  turns  and  angles.     Detached  masses  . 
projecting  above  the  surface  may  be  mistaken  for  the  ledge  or  vein.. 
The  ore  may  occur  in  a  blanket  formation  having  no  distinct  apex.  ; 
If  the  construction  contended  for  should  prevail,  a  mining  location 
which  the  law  declares  shall  secure  an  immediate  right  of  possession  ""'  -  •    ? 
to  the  surface  within  the  marked  lines  would  often  be  a  mere  float,  a  .-•  C-^ 
tentative  location,  to  be  changed  and  adjusted  from  time  to  time  to  t^V  j- 
the  actual  location  of  the  vein,  at  the  instance  of  adjoining  claimants,  ^  ^^^ 
as   subsequent  developments  may  indicate.     It  would  not  become^A.J«J^.  ^ 
fixed  and  permanent  as  against  third  persons,  until  the  patent  wasK    ^_^^^ 
issued.     That  the  location,   as  made,   may  not  be  binding  on  the    .  ^^. 
United  States,  and  that  in  making  the  survey  for  a  patent  the  Sur-  ^ 
veyor  General  mav  ascertain  and  locate  the  true  line  of  the  apex  to  ^  ^^-^ 


S-* 


evj 


(c/<U).  ^  ,'/   ,*?,-.  -*-,  CmcL  n-C:  ,  ^J  C<r(f  .  tat..  ^^,^-4.  <UU 

^^  V   216  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

"■^■i        fix  the  boundaries,  may  be  conceded.    See  Howeth  v.  Sullenger,  113 

j,,^^^       Cal.  551,  45  Pac.  841.    But  it  is  the  clear  intent  of  the  statute  that  in 

^^       the  meantime,  and  as  against  all  others,  the  locator  who  has  in  good 

"~^ , ,     faith  made  the  discovery  and  marked  the  boundaries  with  regard  to 

1h£       the  position  of  the  apex  as  he  then  finds  and  believes  it  to  be  shall  be 

tL<  '•     protected  in  the  possession  of  the  surface  thus  ascertained,  and  that 

the  monuments  he  then  sets  shall  control  the  location  of  the  claim. 

"""^'^  Any  other  interpretation  would  produce  great  confusion  and  uncer- 

,  tainty,  and  invite  disputes  and  litigation.     The  object  of  the  enact- 

^.      ment  of  the  statute,  which  evidently  was  to  give  certainty  of  location 

and  security  of  titles  to  mining  claims  and  prevent  litigation  over 
'^^-    them,  would  be  defeated. 

fj  Substantially  the  same  effect  was  given  to  the  statute  by  the  Su- 

^  preme  Court  of  Nevada  in  Golden  Fleece  Co.  v.  Cable  Con.  Co.,  12 

'i,C>t>  Nev.  329,  and  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  456,  Chief 
pi>Si(  Justice  Beatty,  then  of  the  Supreme  Court  of  Nevada,  writing  the 

opinion.     *     *     * 
'^  The  point  of  the  decision  [in  the  Gleeson  case]  is  that  the  rights 

of  the  parties  are  fixed  by  the  lines  marked  on  the  ground  when  the 
,..,^.,,  location  is  made.  If  the  lines  so  fixed  protect  subsequent  locators 
^  against  changes  afterwards  sought  to  be  made  by  the  first  locator, 
*^'  they  must  be  equally  potent  to  protect  the  first  locator  against  changes 
t-M)^' 'sought  to  be  made  against  his  interest  by  subsequent  locators.  The 
y%^     general  principle  that  the  location  as  made  on  the  ground  controls 

the  rights  of  the  parties  is  stated  in  the  following  cases :  Iron  S.  M. 
T^ '  Co.  V.  Elgin,  etc.,  Co.,  118  U.  S.  207,  6  Sup.  Ct.  1177,  30  L.  Ed.  98; 
-f  o^  Watervale  M.  Co.  v.  Leach,  4  Ariz.  34,  33  Pac.  420;  Wyoming  Co, 
V/^y.  v.  Champion  Co.  (C.  C.)  Gt^  Fed.  548;  Mining  Co.  v.  Tarbet,  98 
'-r  U.  S.  468,  25  L.  Ed.  253 ;  and  Leadville  Co.  v.  Fitzgerald,  Fed.  Cas. 
,.;;-;  No.  8,158. 

j^    ./       There  are  many  cases  which  establish  the  doctrine  that  where  the 
/   '    locator  has  marked  his  corners  so  that  the  side  lines  lie  more  than 

300  feet  from  the  apex  of  the  vein  as  located  by  him  at  the  time,  or 

otherwise  marks  a  claim  larger  than  the  limits  allowed  by  the  statute, 

he  cannot,  as  against  a  subsequent  locator  of  adjoining  ground,  claim 
-  j^4,  ,  the  excess,  and  that  a  court  may  adjudge  that  his  side-lines  shall  be 
5^^  "drawn  in"  to  a  position  not  more  than  300  feet  from  the  general 
,  ^"  course  of  the  center  line.  McElligott  v.  Krogh,  151  Cal.  132,  90  Pac. 
'^-^  823;  Howeth  V.  Sullenger,  113  Cal.  551,  45  Pac.  841 ;  Southern  Cal. 
l^fc^t^  R.  Co.  V.  O'Donnell,  3  Cal.  App.  386,  85  Pac.  932;  Thompson  v. 
^.    Spray,  y2  Cal.  533,  14  Pac.  182;  English  v.  Johnson,  17  Cal.  118,  y6 

Am.  Dec.  574 ;  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480 ;  Rich- 
j\  ^  mond  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29  L.  Ed.  273.  These 
^  '"  and  other  cases  to  the  same  effect  are  cited  by  the  plaintiff  in  support 
^      of  the  proposition  that  the  side  lines  will  be  drawn  in  when  the  court, 

upon  evidence  taken  and  in  the  light  of  developments  subsequent  to 

the  original  location,  ascertains  that  the  locator  mistook  the  actual 

<-o-«»-^  <  '^  k^  ^-^  ^''  ^"^  ^  ^'  %\ 


-I 


-k_B^<4Jb«>i,J<La«. 


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0  t^  <[  U^^  ^-.ry  'rvc<^%-v,- 


i^'-f-' 


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^   ^^>^^f2^     *^      U'^*^-^-^  T^.UJ^    0Uf/C^^  /^cr^    K*^ 


r-        ^^-r^ 


-1! 


vj—r-' 


2l6 

fix  the  boui 
Cal.  551,  4f 
the  meantii 
faith  made 
the  positioi 
protected  i 
the  monun 
^  Any  other 

I  tainty,  and 
ment  of  th 
and  securi 
them,  won 
Substan 
preme  Coi 
'  Nev.  329, 
^Justice  Be 
opinion. 

The  poi 
of  the  par 
location  i; 

against  cl 

they  must 

"sought  to 

general  p 

the  rights 

Co.  V.  Els 

Waterval 

V.  Chamj 

U.  S.  468 
'  No.  8,i5c^ 
There 

locator  h 

300  feet 

otherwisf 

he  canno 

the  exces 

"drawn 

course  o: 

823  ;  Ho 

R.  Co.  A 

Spray,  7 

Am.  Dec 

mond  V. 

and  othe 

of  the  pi 

upon  ev 

the  orig 


-*--<~<<«tv  VUvVkJ/" 


./• 


H 


n^/^ 


p: 


\0-^j^  y. 


Ut-Ai-\.      (  U^l^ 


K/^^JL  ^-^UiX-v  ^tTuJ,   yi-h-^  u^-u.u^-^T- 


r-<«AA 


-|l,^i4i/\^   <(  u^rtlo-^  l^^^^^l^  ^Kuioi^  4£^ 


^      2l6 


»^-«-^^ 


rt 


fix  the  bon 
Cal.  551,  .1 
the  meant; 
faith  mad( 
the  positic 
protected 
the  monu: 
Any  othei 

-^  I  tainty,  an 
ment  of  tl 
and  secui 
them,  wo 
Substa 
preme  O 

t-   Nev.  325 

.  .  Justice  I 
opmion. 
The  p 
of  the  p.- 
location 
against 

'    they  mu 

^■'sought  ■ 
general 
the  righ 
Co.  V.  I 

•^  Waterv 

^    V.  Chai 
U.S.  4 

^No.  8,] 

H      Thei 

^  locator 

■  300  f e< 
others 
he  can 
the  ex 

1  "draw 


course 
823;] 
R.  Cc 
Spra) 
Am.  ] 
mond 
and  c 
of  th 
upon 
the  c 

-^   vr 
^  ^^ 

I      ^ 


^-«^'^*-^   <    '^It^  < 


-U    V-4 


^^  ,    C^M.  TUwt/ 


^^fv-L^  so^y^  ^C^hw^^  uo-**-y9  f/j  gw  ^;^.  c^-ni 


vvji>-4  «. 


>  hnJ\    A'T-fcfsJgh^ViHi^ 


^^     216 

t        fix  the  1 
Cal.  55] 
I       the  mea 
i , .     faith  m 
the  posj 
,      protectf 
the  moi 
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h-^ ,  tainty, 
ment  oi 
and  sec 
them,  Y 
Subs 
preme 
•>t>  Nev.  3; 
^^^  Justice 
'    opinior 
The 
of  the 
-     locatio] 
against 
they  m 
^'t-' 'sought 
^      genera 
the  rig 
Co.  V. 
'■''  Water 
.fi    V.  Cha 
U.  S.  . 
i '  No.  8, 
J      The 
locator 
^^  300  fe 
''     otherv 
he  can 
.     the  ex 
J  "draw 
course 
'    823  ;  I 
t    R.  Co 
^    Spray 
Am.  r 
mond 
and  ot 
of  the 
upon 
the  01 


^- 


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. J-? -(/)>) 'f 


''>^    .yi/LtU'k>if!,.MiJ)»i^,.fA'V'4jt\  )n^ 


fix  th 
Cal.  c 
the  m 
faith 
the  pc 

^^    protec 
the  m 

'*'^  Any  c 

htainty 
jf.      ment  ( 
and  S( 
them, 
Sub 
preme 
r>fr   Nev.  :■ 

opinio 
I         The 

of  the 
^     locatic 
,      agains 
*^  theyn- 
*>ft,'*sough 
genen 
the  ri^ 
Co.  V. 
^^"^  Water 
V.  Ch; 
U.  S. 
^ '  No.  8 

I?      ^^^ 
locato 

■*     other^ 
he  car 

.     the  e> 
J  "drax\ 

*"      course 

''    823;] 
,    R.  Cc 

„  Spray 
Am.  I 
mond 
and  o 
of  the 
upon 

Ij-  the  01 

-J 


OkCLt.  '*^^    V.„^ 


its_^-.Aj>^    U^-**^      f^'vw^     t-W^i.^     Kc-M^    '*'^*-<3L*.--t 

t S'OO  X  Coo  ,    W-*-«CJk.  CcMUL  ^U^U.An ^  W 

^L.yi^'^,^  v>  LJ  :<j  T^T^BttC^,  loll 
u/^  i^i^  ^4*-  /o  t^t^  i^  7 


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^  f  d4    .^^-u^^       .    uv.  C^"  .  :.  c-U<    4    l^    ^K.  -^V  ^-.^^^  K..K 


iA^lt.JL.^,><^nJk     iC«M»«^««    i^-  %.«-   JL/>    > 


^ 

fix  1 

Cal. 

the 

faitl 

the 

prot 
the 

"\i 

■  Any 

^ 

taini 
men 

and 

then 

Si 

r^ 

pren 

Nev 

f.s. 

r  J^^^' 

^■■ 

opin 
TI 

of  th 

locat 

agai] 
they 
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gene 

the  1 

' 

Co.  ^ 

4''-\ 

Wat 

/f^^' 

V.  C 

u.  s 

No. 

'■ 

T] 

local 

300 

othe 

he  c; 

the  ( 

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R.  ( 

Spn 
Am. 

mon 

and 

of  tl- 

upoi 
the  ' 

,     UJ^  TLmvT 


location  of  the  vein  where  it  does  not  show  upon  the  surface,  and  L^^ 

that  the  mining  claim  is  always  subject  to  change  of  position  if  new  r^ 
evidence  or  discoveries  demonstrate  that  the  vein  is  situated  else- ^^'-e^-H  v^ 
where  than  in  the  position  it  was  supposed  to  occupy.   None  of  them  o-^  <3vf^' ■ 
supports  the  proposition.    In  each  the  court  assumed  that  by  some  v».Oi«>aJ^  y- 
mistake  the  side  line  or  corner  had  been  originally  located  too  f ar  <*>^oy  f 
from  the  place  located  as  the  apex  of  the  vein,  and  the  question  in-  (Jj2j^_^\ 
volved  and  decided  was  the  effect  of  such  a  mistake  in  measuring  x/  ,^  xi , 
from  the  center  stake  or  monument.   For  example,  in  ]\IcElligott  v.  t^^-^* 
Krogh,  although  it  is  not  expressly  so  stated  in  the  opinion,  the  fact  'XTlxy-A^ 
was,  as  the  record  on  file  shows,  that  the  court  found  that  the  true  >^,-<^>^  *a, 
line  of  the  vein  and  the  line  thereof  as  originally  located  were  sub-  ^iLf-e  <:-^ 
stantially  identical.     The  question  of  the  effect  of  a  difference  be-  (yfi^  -^ 
tween  the  actual  place  of  the  apex  and  the  original  monuments  set  jl^     i    ^^ 
to  locate  it  was  not  presented,  and  nothing  said  in  the  opinion  can  be        *'*">^ 
taken  as  an  expression  of  an  opinion  upon  that  question.  _    /J>  *'^"*-;^  ^ 

Of  course,  we  do  not  here  consider  the  effect  of  a  fraudulent  or  in-  -jUi  '^-'-v^ 
tentional  mislocation  of  the  vein.    The  evidence  shows  that  at  the  C^n^Q^^.  • 
eastern  end  the  vein  did  not  appear  upon  the  surface,  and  that  the  y.     ^, 
defendants  erected  the  center  monument  at  that  end  of  the  Lookout^ . 
claim  in  good  faith  at  the  point  where  they  believed  the  vein  ex-r*'*-^\^ 
tended  across  the  end  line  thereof.  Upon  the  facts  found  and  shown  W  T^-*^- 
by  the  undisputed  evidence,  the  court  erred  in  giving  to  the  plaintiff  £7  ^u-4 
the  ground  included  within  the  original  limits  of  the  Lookout  loca-(j.^^* 
tion  and  embraced  in  the  overlap  of  the  Santa  Ynez  claim.  We  have  <auuCD  v-'^ 
assumed  that  the  evidence  is  sufficient  to  show  that  the  vein  is  situ-   ^^^j,  4 
ated  off  the  located  line  as  the  findings  declare.   The  appellants  ear-  ^  _ 

nestly  contend  that  the  findings  are  without  support  in  this  particu-  '^'^'^-^  ■/ 
lar.    Our  conclusion  that  the  original  monuments  control  makes  it  <iLo^_  tv. 
unnecessary  to  consider  this  question  of  the  sufficiency  of  the  evi-  ^osjOV" 

The  judgment  and  order  are  reversed.  [;^^:;^r^  W  U.rd<3.^;. 

Section  4.— Record.  ;^  </U^^>^S<>  ^i-'tncjc-t^^  flj^ 

FEDERAL  STATUTES.  ^^  6^U-^  «J^-. 

I       Sec    2324     *     *     *     All    records   of   mining   claims   hereafter   made   shall  ^^c^cA/ 
■  \  contain  th^'hamf^or  names  of  the  locatorlf^the  date  of -theloiaUQJT.  and^^uch  ^'^j^^^U 
-\  a  descxipliaii  oi  thTTTamTor  clatiTl5--tota_ted  bj_xeierence  to   some  natural  ^ 

66^tor  permanent  moiuTmBTrt-arwTna^nti^^tl^^^  *     '^     '—Rev.  St.   f.J<.^-1  u,- 

,  Xj:^7^r2524.  COLORADO  STATUTES.^*  ^*-^  ^ 

The  discoverer  of  a  lode  shall,  within  three  months  from  the  date  of  dis-  ^^ 

covery,  record  his  claim  in  the  office  of  the  recorder  of  the  county  m  which   t„«rv-^*'-^ 
such  lode  is  situated,  by  a  location  certificate  which  shall  contam :  |t^^  j^^^ 

"See  note  1,  ante.     In  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  49     \\^^  L 
L.  ed.  409,  25  Sup.  Ct.  211,  where  a  state  statute  required  the  recorded  loca-    ,  j^^^^^^^^j 


2l8  LOCATION    OF    LODE   AND   PLACER  ^LAIMS. 

■fvu')  First — The  name  of  the  lode. 

>       ^  Second — The  name  of  the  locator. 

^^  f^'         Third— The  date  of  location. 

JL^i  Fourth — The  number  of  feet  in  length  claimed  on  each  side  of  the  center 

-J       ,       of  discovery  shaft. 

^<M  .  Fifth — The  general  course  of  the  lode  as  near  as  may  be. — Rev.  St.  Colo. 

-  ^    ,     1908,  §  4194. 

t^t-^  ■'  Any  location  certificate  of  a  lode  claim  which  shall  not  contain  the  name 
^.t.<'  of  the  lode,  the  name  of  the  locator,  the  date  of  location,  the  number  of 
■j^  lineal  feet  claimed  on  each  side  of  the  discovery  shaft,  the  general  course 

■^^*'  '  of  the  lode,  and  such  description  as  shall  identify  the  claim  with  reasonable 
jeK«4.- certainty  shall  be  void.— Rev.  St.  Colo.  1908,  §  4195. 

^  I  J  No  location  certificate  shall  claim  more  than  one  location,  whether  the 
Jvrl  •*  ■  location  be  made  by  one  or  several  locators.  And  if  it  purport  to  claim  more 
"  than  one  location  it  shall  be  absolutely  void,  except  as  to  the  first  location 
•''V***'''  therein  described,  and  if  they  are  described  together,  or  so  that  it  cannot 
kv^i"        be  told  which  location  is  first  described,  the  certificate  shall  be  void  as  to  all. 

^      —Rev.  St.  Colo.  1908,  §  4196. 


^r- tr  •'^•l<v«t*6   r\AC<r»^^     (a)   Original  Record. 

-f    fifc^.   at>tT>>r,    STURTEVANT  V.  VOGEL  ET  AL. 
■  > 

1909.     Circuit  Court  of  Appeals.     93  C.  C.  A.  84,  167  Fed,  448. 

'   ^4<?V--^    In  error  to  the  District  Court  of  the  United  States  for  the  Second 
I   „^.     Division  of  the  District  of  Alaska. 

*  '  ■      The  plaintiff  in  error  brought  ejectment  against  the  defendants  in 
^*$^» '      error  to  recover  the  possession  of  a  placer  mining  claim.     The  jury 
>^  *8Kv  returned  a  verdict  for  the  defendants  in  error. 
-.  /,  Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 

UTu^  Gilbert,  Circuit  Judge  (after  stating  the  facts  above). ^^ — The 
>^44  plaintiff  in  error  contends  that,  both  by  the  laws  of  Alaska  and  the 
Xtf  '  custom  of  the  miners,  the  recording  of  the  location  notice  within 
5-^  »  90  days  after  location  is  essential  to  the  life  of  the  location,  and  that 
^^  a  failure  to  so  record  the  same  results  in  the  forfeiture  thereof.  But 
^n^W'  one  witness  was  called  to  prove  the  alleged  custom  of  the  miners,  and 
yN  his  testimony  falls  short  of  showing  the  existence  of  any  custom  or 

regulation  adopted  by  the  miners,  in  the  district  where  the  claim  is 

L  c-^  - 

^^u.    tion    certificate    to    contain    "the    dimensions    and    location    of   the    discovery 
shaft,  or  its   equivalent"   and  "the   location  and  description   of   each  corner, 
^  ^/tCfrXvith  the  markings  thereon"  and  the  state  Supreme  Court  had  held  a  loca- 
I  tion  invalid  because  the   statute  was  not  complied  with,  the  United   States 

K^>-  Supreme  Court  held  that  the  statute  was  valid  and  affirmed  the  state  court's 
K  decision.     See  also  Clason  v.  Matko,  —  U.  S.  — ,  32  Sup.  Ct.  392. 

"  The   statement   of   facts   is   abbreviated   and   parts    of   the   opinions   are 

JK ,  W  iH<^>-^  -  ^^  lA^^j)  fee  (|!rfe  ^"^-eO  i<-^  lUMA-^t^.. 


^  RECORD.  210      .       V 

located,  making  the  recording  of  the  notice  of  location  essential  to  Aj^^^j^jy 
the  right  to  hold  the  same.     *     *     *  ^^^ 

Section  2324,  Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  14.26),  provides  r*'"^  * 
that  all  records  of  mining  claims  shall  contain  the  name  or  names  y«c#^»  "I 
of  the  locators,  the  date  of  the  location,-"^^^  and  such  a  description  oi  fJ^j^^Xj^/^ 
the  claim  or  claims  located,  by  reference  to  some  natural  object  or  v.^^  ^. 
permanent  monument,  as  will  identify  the  claim.   This  provision  does^^w"^ 
not  require  that  the  location  be  recorded.   It  leaves  the  subject  openn**^ 
to  legislation  by  the  states  or  to  regulation  by  the  miners.    Haws  v.  >aIma\, 
Victoria  Copper  Mining  Co.,  160  U.  S.  303,  16  Sup.  Ct.  282,  40  L.  ^^^^ 
Ed.  436;  I  Lindley  on  Mines  (2d  Ed.)  373,  and  cases  there  cited.^j^JL^Y 
It  is  contended  that  section  15,  c.  786  [Alaska],  Act  June  6,  1900,  SiTj^Lx 
Stat.  327,  requires  that  notice  of  the  location  of  a  mining  claim  shall 
be  filed  for  record  within  90  days  of  the  discovery  of  the  claim.   The^^J'*-*'^  ' 
section  requires  recorders,  upon  the  payment  of  fees,  to  record  sep-  Ua  yt^ 
arately  certain  classes  of  instruments,  such  as  deeds,  mortgages,  cer-  )\4)mC! 
tificates  of  marriage,  wills,  official  bonds,  etc.,  including  affidavits  of  l»jj.\ 
annual  work  done  on  mining  claims,  notice  of  mining  locations  and  V 
declaratory  statements;  and  in  subdivision  11  it  adds  to  the  list  suchKA^  ■ 
other  writings  as  are  required  or  permitted  by  law  to  be  recorded,  in- 4  t>*w>*»- 
cluding  the  liens  of  mechanics,  laborers  and  others :  lsJV*w 

"Provided,  notices  of  location  of  mining  claims  shall  be  filed  for  recordflUttl^' 
within  ninety  days  from  the  date  of  the  discovery  of  the  claim  described  injLi.  „^ 
the  notice."  St"*^ 

This  statute  permits  the  recording  of  instruments.    It  contains  no  v,^^vV 
positive  enactment  that  any  of  the  enumerated  instruments  shall  be  \^^\ 
recorded,  nor  does  it  provide  that  the  failure  to  record  any  instru-  ^'^^^ 
ment  shall  work  a  forfeiture  of  rights  thereunder.   Obviously  by  the  KcjC  ^ 
terms  of  this  statute  an  unrecorded  deed  is  not  rendered  invalid  as  .j^/v.^' 
between  the  parties,  nor  does  the  mere  failure  to  record  a  "^^'^^"SJ»s^ 
location  work  a  forfeiture  thereof.    We  are  therefore  not  called  up-^*"^^ 
on  to  decide  the  question,  discussed  by  counsel,  whether  a  statutory  K\»v« 
requirement  that  the  location  notice  be  recorded  is  mandatory  or  u^V^m 
merely  directory.  ^'yC^u 

In  the  decisions  of  Montana  relied  upon  by  the  plaintiff  in  error,  '^^ 
we  do  not  find  support  for  his  contention  that,  under  the  law  of  •^•^'■ 
Alaska,  failure  to  record  location  notice  should  be  held  to  work  a^j*-^-*-*-^ 
forfeiture  of  a  mining  claim.    In  King  v.  Edwards,  i  Mont.  235,  h6!j>f» 
the  question  for  decision  was  whether  the  failure  to  perform  the  pre-  \^ij^  * 
scribed  amount  of  work  upon  a  claim  resulted  in  forfeiture.    The  ^^^^jl 

^'a  In  the  absence  of  a  statutory  reference  fixing  some  other  date,  "the  date4aAA>-|c 
of  the  last  act  to  be  done  on  the  ground  seems  obviously  to  be  the  date  of  .  V 

location.    It  can  not  include  the  date  of  record  because  the  record  under  the  '^  1 
act  of  congress  must  give  the  date  of  location,  which  to  be  so  given  must  4J^#fv 
necessarily  be  precedent  to  the  paper  reciting  it,  except  of  course  that  the  IJ 

record  might  be  made  on  the  same  date  that  the  kst  act  was  performed  on    j»    |^ 
the  ground."    Morrison's  INIining  Rights,  14  ed.,  117.  ^ 


■"-"^^^^^     220  LOCATION    OF    LODE   AND    PLACER   CLAIMS.  \ 

t^/t,^  court  found  that  it  was  generally  considered,  among  the  miners  of 
^j^     N^e  district  in  which  the  claim  was  situated,  that  such  a  failure  would 
^    n^j?c  that  effect,  and  said  that :  .a 

^_^  ^.  <^-<      "Where  a  custom  is  plain,  there  is  no  room  for  construction,  and  the  court  ijv^  ^ 
U      must  take  it  as  it  reads  and  give  it  its  legal  effect."       '^^fr/^y  >/ut-M*X-J    ^ 

^.  ^*     *    *    *  ■'•  ;  ..:^...v.4  cr  M  uyH^y^ 

^-r^  In  Last  Chance  Min.  Co.  v.  Bunker  Hill  &  S.  Min.  Co.,  131  Fed./  2 

<-C:>.     579>  66  C.  C.  A.  299,  this  court  held  that  the  failure  of  the  locator  of 
A^        the  Bunker  Hill  claim  to  record  his  notice  of  location  within  the  time        ^ 
r     prescribed  by  the  Idaho  statute  did  not  work  a  forfeiture  of  thejc%-^ 
^•H^.    claim,  there  being  no  such  penalty  affixed  by  the  statute;  citing  Ju-1 
R.atT**-/-piter  Min.  Co.  v.  Bodie  Con.  Min.  Co.  (C.  C.)  11  Fed.  666,  Bell  v.j  -Q- 
^li^^,^J^  Bed  Rock  T.  &  M.  Co.,  36  Cal.  214,  and  other  cases  from  California 
vWcfv-A.^"^  Arizona.    In  Zerres  v.  Vanina   (C.  C.)    134  Fed.  610,  Judgel]]^ 

^      Hawley  construed  Comp7Laws  Nev.  §  210,  providing  for  the  loca- 
d^j":      tion  of  a  lode  mining  claim,  and  declaring  that  within  90  days  of  the 
"^  ^     date  of  posting  the  location  notices  on  the  claim  the  locator  shall 
TV*t   record  his  claim  within  the  mining  district,  etc.,  and  held  that,  since 
k-^»-o^the  statute  did  not  provide  for  a  forfeiture  for  a  failure  to  record 
^.^  within  the  time  specified,  the  failure  was  insufficient  to  work  a  for-  ,- 
^^     feiture  of  the  locator's  right.   And  in  Ford  v.  Campbell,  92  Pac.  206,    T\T 
■^    '     the  Supreme  Court  of  Nevada  said  that  the  intention  that  failure  to/N--— 

t^^  comply  with  the  statute  should  work  a  forfeiture  of  mining  rights 
Y-  A  "ought  not  to  be  imputed  to  the  Legislature  except  upon  the  very 
^/p  clearest  language,  not  susceptible  to  any  other  reasonable  construc- 
^^^tion,"  and  quoted  with  approval  the  language  of  Judge  Hawley  in 
0  <st4^2erres  v.  Vanina.  Of  similar  import  are  Johnson  et  al.  v.  McLaugh- 
»^-^-  lin,  I  Ariz.  493,  4  Pac.  130,  and  Rush  v.  French,  i  Ariz.  99,  25  Pac. 
„_^  816.  *  *  * 
iLftt^     We  find  no  error  for  which  the  judgment  should  be  reversed.    It 

is  accordingly  affirmed. 
1-^  Ross,  Circuit  Judge    (dissenting). —  *     *     *     In  respect  to  the 

^5_^  /     mining  ground  of  the  territory  of  Alaska,  however,  Congress,  in  sec- 
tion 15  of  the  act  of  June  6,  1900,  "making  further  provisions  for  a 
civil  government  for  Alaska  and  for  other  purposes"  (chapter  786, 
,       31   Stat.  327),  provided  that  "notices  of  location  of  mining  claims 
^^_^       shall  be  filed  for  record  within  ninety  days  from  the  date  of  discovery 
of  the  claim  described  in  the  notice."    Smith  v.  Cascaden,  148  Fed. 
"^^  T     793>  78  C.  C.  A.  459.    The  recording  of  the  notice  of  location  is 
r-\Si  ^-   therefore,  by  a  statute  of  the  United  States,  made  one  of  the  essen- 
t-i.t    ,'0^^^  steps  to  a  valid  location  of  a  mining  claim  in  the  territory  of 
.  ^^   ■  ^Alaska.     *     *     * 

^  '  ^         It  therefore  seems  to  me  that  the  location  under  which  the  de- 

-^         fendants  in  error  claim  was  never  perfected,  because  they  did  not 

,^r^     take  one  of  the  essential  steps  required  by  the  statutes  of  the  United 

,        States;  that  is  to  say,  they  did  not  file  for  record  within  90  days 


RECORD.  /  ^        ^2lO^,„^{ 

from  the  date  of  the  discovery  of  the  claim,  nor  at  any  time,  a  notice  "^^^^ 
containing  the  name  or  names  of  the  locators,  the  date  of  the  loca-  C-tTivAj 
tion,  and  such  a  description  of  the  claim  located  by  reference  to  some   l\ATt\ 
natural  object  or  permanent  monument  as  would  identify  it.    The^J2^.L^ 
case  here  presented,  therefore,  is  not,  in  my  opinion,  one  of  forfei-  -^ 
ture,  for  the  defendants  in  error  never  took  one  of  the  essential  steps  y*^'*'^ 
„--**  required  in  making  their  location.  VeXiW*^ 

In  the  case  of  Last  Chance  Mining  Company  v.  Bunker  Hill  &  S.  2,Z£)iU 
f  Mining  &  C.  Co.,  131  Fed.  579,  66  C.  C.  A.  299,  referred  to  in  the  ^  ^  » 
fy  opinion  of  the  court,  there  was  a  question  of  priority  between  the  "^ -*  *  ^'"^ 
Last  Chance  mining  claim  and  the  Bunker  Hill  mining  claim.  Pri-  -fVji£>-V 
ority  was  asserted  for  the  Last  Chance  only  upon  the  fact  that  it  ^jwLj-< 
was  located,  marked,  and  the  notice  of  its  location  recorded  before  J)  rvJiCt, 
the  location  notice  of  the  Bunker  Hill  was  recorded.  *  ^'  *  '^^^^  ,  L. 
facts  as  found  by  the  master,  and  which  were  accepted  by  the  court,  ^ 
were  that  the  Bunker  Hill  claim  was  located  September  10,  1885,  by4"N>tA/*<  * 
one  O'Rourke;  *  *  *  that  on  September  29,  1885,  CRourke^^jOj^y^^  f 
caused  a  notice  of  location  of  the  claim,  duly  verified,  to  be  recorded  fuj 

in  the  office  of  the  recorder  of  the  county  in  which  it  was  situate ;  ^^^^"Z^ 
*  *  *  that  the  Last  Chance  claim  was  duly  located  September  O  C-v'^  v 
17,  1885,  and  the  location  notice  thereof  recorded  on  the  22d  day  of  (^>oc^ 
the  same  month ;  that  prior  to  the  discovery  and  location  of  the  Last  ^; 

Chance  its  discoverers  and  locators  "had  actual  knowledge  of  the         ^j  • 
discovery  and  location  of  the  Bunker  Hill  claim ;  they  had  visited  uU   'f\s 
the  discovery,  read  the  notice  posted  thereon,  saw  the  discovery 
stake,  the  east  end  stakes,  and  knew  that  the  locator  was  in  the  C^^-^^ 
^     actual  possession  of  the  claim,  and  was  then  engaged  in  development  5  5  I'xl 
T     work  thereon."     *     ''^     * 

*     '       In  the  case  of  Last  Chance  Mining  Company  v.  Bunker  Hill  &  -S")^  {\ 
S.  Mining  &  C.  Co.,  therefore,  it  appeared  that  the  claimants  of  the  <?   C    M 
Last  Chance  claim  entered  upon  the  actual  possession  of  the  locator     *    '^ 
yk       of  the  Bunker  Hill  claim  while  the  latter  was  a  valid,  subsisting  IXSLil-t)  » 
C\  claim,  and  while  its  locator  was  actually  engaged  in  working  it.  #  /f*    ^f 
H^'^-That  ground  was,  therefore,  not  open  to  location  by  the  Last  Chance  — -__iL 
claimants,  for  which  reason  they  acquired  no  right.     And  since  the  KS^^CkJ*^ 
^  f     statute  of  the  United  States  applicable  to  that  case  did  not  require  ^" 
"        the  recording  of  such  notices  of  location,  and  the  statute  of  Idaho   "      ^    [^ 
r       did  not  fix  any  penalty  for  the  failure  to  record  such  notice  within  i^^*.  ^CCt 
^  the  time  it  prescribed,  the  government  of  the  United  States  issued  its  j^^— ^ 
^       patent  in  perfection  of  the  Bunker  Hill  location,  and  this  court  very  "^^*M| 
P       properly  sustained  that  title,  and  held  that  the  recording  by  the  Bun-   T^t-^ 
^    ker  Hill  claimant  of  his  notice  of  location  three  days  later  than  the    qw^ 


y 


V     time  prescribed  by  the  Idaho  statute  did  not  work  a  forfeiture  of  his  n        /  ' 

r^  rights.    In  the  case  now  before  us,  however,  there  was  no  actual  pos-  ^^^O-^c 

■^^  session  of  the  ground  by  the  defendants  in  error,  and  they  never  ^tjlj^LK^ 

any  time  filed  the  notice  of  location  required  by  the  Alaska  statute.  >^  >       ' 


*^^   222  location'   OF   LODE   AND   PLACER   CLAIMS.         ''      ' — ' '      ""^ 

^       The  location  under  which  they  claim,  therefore,  lacked  one  of  the 
-^--  ■ "      essential  elements  of  a  valid  location  in  Alaska.    No  question  of  for- 
feiture, in  my  opinion,  arises  in  the  case.     The  ground  was  con- 
fessedly vacant,  and  was  therefore  open  to  exploration  and  location, 
'unless  covered  by  a  location  which  met  the  requirements  prescribed 
,.^     ...i,     by  Congress. 
^>  For  the  reasons  stated,  I  dissent  from  the  judgment  here  given. 

^       ^     FARMINGTON't^OLD-MIN.  CO.  v.  RHYMNEY  GOLD  &  J-^^^JV^ 
^    b  COPPER  CO.  SVM./i. 

tJic?  1899.     Supreme  Court  of  Utah.     20  Utah  363,  58  Pac.  832.    .      ^ 

^       I  .    -  f  V0>4^ 

""^^  Action  by  the  Farmington  Gold-Mining  Company  against  the  Kn 

-^p       Rhymney    Gold    &    Copper    Company.      Judgment    for    defendant.  ^^ 
,jv%iJL      Plaintiff  appeals.    Affirmed. 

fti,!^  *<C     Bartch,  C.  J.2^ — The  main  question  presented  for  our  considera-  *  j^ 
^Ti   tion  in  this  case  is  whether  the  notice  of  location  of  the  Rhymney   I 
^^^*^    i^iining  claim,  with  the  supplementary  proof,  was  properly  admitted  '   • 
^■'*^^     /in  evidence.    The  ground  of  the  objection  appears  to  be  the  uncer-  y^-^. 
'^;2::^  / tainty  in  the  description.     The  notice  reads  as  follows:    "Notice  is  ^(^ 
■i^'cJL       hereby  given  that  the  undersigned,  having  complied  with  the -re-     L 
P^  _      quirements  of  section  2324  of  the  Revised  Statutes  of  the  United   ^ 
r^        States,  and  the  local  laws,  customs,  and  regulations  of  this  district,  "^^ 
'y\^         has  located  1,500  feet  in  length  by  600  feet  in  width  on  this,  the  ^^L. 
^   f^       Rhymney  mine,  lode,  vein,  or  deposit,  bearing  gold,  silver,  and  other  7^ 
'        precious  metals,  situated  in  the  Farmington  mining  district,  Utah  '' /i^ 
^*^         territory,  the  location  being  described  and  marked  on  the  ground  as  ^^h 
)n^       follows,  to  wit:    Situated  about  one  mile  and  a  half  eastward  from 
A  the  depot,  under  a  large  cliff  of  rock.    I  claim  from  this  notice  750 

■  |fe^t  southeasterly,  to  a  monument  of  stone;  thence  northwesterly, 
■l-'fr6h\  'this  notice,  750  feet,  to  a  monument  of  stone.     The  mining 
claim  above  described  shall  be  known  as  the  'Rhymney  Mine.'     Lo- 
cated this  7th  day  of  January,  1884.    Names  of  locators  :   Hyrum  E. 
Haynes."    The  notice  was  recorded  May  19,  1884. 

The  appellant  insists  that  it  was  so  indefinite  and  uncertain  that  it 
did  not  impart  notice  to  the  public,  and  that  the  claim  was  not  tied 
J  to  a  natural  object  or  permanent  monument  so  as  to  identify  it,  as 
«  C*.  V.  *  required  by  section  2324,  Rev.  St.  U.  S.     *     *     * 

In  addition  to  the  date  of  location  and  name  of  the  locator,  how- 
^  ^^  ever,  the  statute  requires  the  record  to  show  such  description  of  the 
,j.^  claim  located  "by  reference  to  some  natural  object  or  permanent 
•"n^       monument  as  will  identify  the  claim."    It  must  be  admitted  that  the 

»»>.  ."Part  of  the  opinion  is  omitted.        S     |»/»*  . 


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icT^^^  ^  ^^^ A^-w^^ "hXv^  rit^xji-5  ir-^M  '^  ^"-^  '^_ 

fi-^h^^.  H-u^^,  ^?i^.9Pi,   ^^,  U^>5  W>-*\ 

Ci  UA^^  C>a-w^-^   UfOt,   a  ^'^   /,^(^  <«..^St*^,'^  ^^^^ 

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notice  is  indefinite  in  not  stating  the  number  of  feet  in  width  claimed  f . '  . 
on  each  side  of  the  point  of  discovery,  or  monuments  of  stone  ^^~ C).»fjt\ 
f erred  to  therein,  and  should  therefore  be  limited  to  an  equal  ^^"^~t.»^.^i 
ber  of  feet  on  each  side.    When  so  limited,  it  would  seem  to  be  suffi-^^'^^yY 
cientlv  definite,  and,  thus  viewed,  the  description  would  seem  suffi-^i'^H'•  ■ 
cient  to  indicate  to  a  subsequent  locator  the  intention  of  the  claimant  Jvic 
as  to  the  number  of  feet  claimed.  (ux^v^i 

Nor,  under  the  circumstances  as  shown  by  the  proof,  is  the  ^^J^^'c^^ 
tion  to  the  location  that  the  claim  was  not  so  tied  to  a  natural  object  ^*^*^^ 
or  permanent  monument  as  is  required  by  law  well  grounded.    The  >'V/>^ 
,  notice,  indeed,  appears  Jo  _be_  somewhat  uncertain  in  not  stating  the  (h^  U4 
^   ^KmdloEjIepot  referred  to,  and  not  giving  the  exact  distances  and^r.^n" 
"^   !  direction  the  claim  is  from  the  depot ;  but  these  were  matters  of  fact,  ;  ' 

Iwliich  could  .be  shown  by  evidence  outside  the  notice,  and  on  this  ^  <^  ' 

point  the  record  contains  evidence  sho\ying  that  at  the  time  the  loca-  <jj^  >^ 

tion  was_made  the  Union  Pacific  Railway  depot  was  the  only  depot  ^^  f^.^-j^ 

I  in  the  mining  district  where  the  claim  was  located ;  that  there  was  \ 

^/  but  one' large  cliff  of  rocks,  i^  miles  east  of  that  depot;  that  the  '-^  >" 

1  Rhymnev  claim  was  located  at  the  base  of  that  cliff  of  rocks  accord-  ^^,^-^ 

'  "ing  to  law:  and  that  a  vein  or  lode  was  discovered  by  the  locator  ^  ^^ 

within  the  limits  of  the  claim.    Under  the  circumstances  thus  shown  "_  '    / 

in  evidence,  the  location  was  sufficient  to  impart  notice  to  any  subse-  t-v  <*^ 

quent  locator  of  the  fact  of  an  asserted  claim,  and  the  notice,  ^1"^^^*^''^* 

though  imperfect,  supplemented  by  such  proof,  was  properly  ad-(rcL  n 

mitted  in  evidence.  H  ^  *^ 

With  just  how  much  accuracy  the  description  of  a  mmmg  claim,  Vy, 
in  reference  to  a  natural  object  or  permanent  monument,  must  be  ii  W  ■'' 
stated  in  the  notice  of  location,  is  not  set  forth  in  the  statute,  and  >v-€t 
I  where,  as  in  this_case,  the  location  was  evidently  made  in  good  faith,  q^^.^^^^_^ 
I  we  are  not  disposed  to  hold  the"  locator  to  a  very  strict  compliance 
l3  I   with  the  Taw  in  respect  to  his  location  notice.    If,  by  any  reasonable  604-0 
I   coristrflction,  in  view  of  the  surrounding  circumstances,  the  language  U^^^ 
'    empToyed  in  the  description  will  impart  notice  to  subsequent_  lo-,:^.,^' 
-cators,ifis  sufficient.     Prospectors,  as  a  rule,  make  no  pretensions  ^^_^ 
of  s^cholarship  or  of  the  art  of  composition,  are  neither  surveyors  ^  ^.^ 
,  nor  lawyers,  and  if,  in  their  notice  of  location,  technical  accuracy  of^^^^, 
expression   were   an   absolute  requirement,  the  object  of  the   law,^._,^__^. 
which  doubtless  is  the  encouragement  and  benefit  of  the  miners, 
\  would  in  many  cases  be  frustrated,  and  injustice  would  result,  by  the'^  ' 
■  disturbing   of   possession    after   much   hard   labor  performed   andr 
money  in  good  faith  expended.  Therefore  mere  imperfections  in  the'--     ; 
notice  of  location  will  not  render  it  void.     Courts  have  usually  con-  &■  *f 
strued  the   statute   respecting  the  location   of  mining  claims  with  v^W  | 
much  liberalitv,  and  the  sufficiencv  of  the  location,  with  reference  to>,,;v^ 
natural  objects  or  permanent  monuments,  is  simply  a  question  ofi^ 
fact.    Lindl.  Alines,  §§  381,  383;  Erhardt  v.  Boaro,  113  ^-  S.  527.  .^^ 

Of^ofv;^    Hl/-C-^       t^-lN;>Uj    <!XArT^y<       ""M^- 


^j^^^  224  LOCATION   OF    LODE   AND   PLACER   CLAIMS. 

""^  1!^  5  Sup.  Ct.  560;  Bennett  v.  Harkrader,  158  U.  S.  441,  15  Sup.  Ct. 
■/vA-Kv*.  863  ;  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801  ;  Flavin  v.  Mattingly, 
Olf-MM?^  Mont.  242,  19  Pac.  384;  Gamer  v.  Glenn,  8  Mont.  371,  20  Pac. 

654;  Mining  Co.  v.  Callison,  5  Sawy.  439,  Fed.  Gas.  No.  9,886; 
^^f  Wilson  V.  Mining  Go.  (Utah)  56  Pac.  300. 

^''t%  ^  According  to  the  record,  the  Rhymney  claim  was  located  in  1884 
t*  ^n.^^y  the  respondent's  predecessor,  and  the  same  ground  was,  in  1896, 

attempted  to  be  located  as  the  Gray  mining  claim  by  the  appellant. 

For  12  years,  as  appears,  prior  to  the  attempted  location,  the  re- 
'-'-,{'•  spondent  and  its  predecessors  in  interest  had  located,  worked,  and 
"Jr^J^^  developed  the  claim,  expended  large  sums  of  money  thereon,  and 
f^jicij.  substantially  complied  with  all  the  laws  and  the  customs  and  regula- 
)  Wc' '  ^^°"^  °^  ^^""^  mining  district.  Under  these  circumstances,  to  permit 
_^  the  appellant  to  recover,  on  purely  technical  grounds,  would  not 
^  ■  ''  only  be  a  great  injustice  to  the  respondent,  but,  doubtless  would  be 
*>*-»>*.  a  menace  to  the  titles  of  many  mining  properties  in  this  state  which 
t>f  hitherto  have  been  unquestioned  and  unquestionable.  The  record 
i^  ,  presents  nothing  which  justifies  a  reversal  of  this  case.  The  judg- 
\^\.       ment  is  affirmed,  with  costs. ^'  ^fj  &vs.  .X?  f*^*=-<   Cftu^  ^ 

,  ^.y^  W     STRIGKLAND  v.  GOMMERGIAL  MINING  COTip^  c^^  J 

►   ».     1909.     Supreme  Gourt  of  Oregon.     sS  Ore.  s^S,  106  Pac.  1017.   . 

i"*!^     .    ^^^^  ^^  ^  ^^"^^  ^^y  George  Strickland  against  the  Gommercial  Min^^' 
r^^'l—ing  Gompany,  a  corporation,  to  determine  the  right  of  possession  of<;tA^ 
'  ■    '        about    six    acres  of    mineral    land    in    Baker    Gounty,    Or.     The  >.-4. 
amended  complaint  states  in  effect  that  on  May  2,  1896,  Miles  Rat- it,' 

'^  ^  "It  is  next  claimed  by  the  appellant  that  the  notice  of  location  of  the  '^^' 
[  <S^<  '  >■  FrankHn  and  Clift  claims  was  indefinite  and  uncertain  as  to  locality,  and  A  j{ 
X*  should  not  have  been  received  in  evidence.     It  appears  that  the  Clift  claim 

'•?/''    J  ^^^^  located  in  1888,  and  was  a  relocation  of  the  Old  Susan  ledge.     It  was  A  JL 
'"rt    *M  where  the  Old  Susan  mine  was  located.     The  testirnony  shows  that  the  Old  '    . 
"Y  -"—       Susan  had  been  a  shipper  of  ore  and  a  dividend  payer  for  years.     The  notice  4^" 
aJo^J^,^  recites,  'This  claim  shall  be  known  as  the  Clift  mining  claim,  and  was  known       > 
^^^''^^  as  the  Susan  ledge,  about  2  miles  south  of  Diamond  City,  Tintic  mining  dis-'^^^ 


eK..KAjt     trict,  Utah.'     The  Franklin  claim  was  located  in  1893,  about  VA  miles  south- 


ij^^  ..  of  Diamond   City,   on   the   west   side   of  the   Clift   claim.     One   was    located  '  " 

*.  adjoining  the  other.     The  testimony  shows  that  Diamond  City  and  the  Old'C^ 

'V  t  -^  Susan  mining  ledge  had  a  notoriety  in  that  vicinity,  and  were  well  known. 

^  yi.f  Work  had  been  performed  on  these  mines  to  keep  up  the  assessment  work  since 

j         '  their  location.     Taking  all  the  facts  into  consideration,  we  are  of  the  opinion 

•»/^**V  that  the  notices  were  sufficient.     The  construction  of  a  notice  for  a  mining 

I  location   should  be  liberal,  and  not  technical,  and  the  sufficiency  of  a  notice 

'"^^    '  with  reference  to  natural  monuments  or  permanent  objects  is  a  question  of 
fact.    Wilson  v.  Mining  Co.,  19  Utah,  66.  56  Pac.  300 ;  Farmington  Gold-Min. 

..  Co.   V.  Rhymney   Gold  &   Copper   Co.    (Utah)    58   Pac.   832."     Miner,   J.,  in 

KjJtA)  Fissure  Min.  Co.  v.  Old  Susan  Min.  Co.,  22  Utah  438,  63  Pac.  587. 

Lo^'^    L^^^    '?^.  ^^+^,€to''^   rfCvV     ^^U%«i-a  t-v  vv-v^^*^ 

tW  VVVA.*^*-   CH.   cCvJi)  i^x  fCs^   (c(-K^%   cXf   ^X^J^  tN^-*^    KX-^'- 


A 


^.-C^^ru^  i^\^^x^  c-w^ua?  (rv^vvw^.     i:cc^-vV:...^.^  j-,^*!^  ^^^. 

cliff,  a  qualified  entryman,  duly  located  the  Summit,  a  placer  mining  Vt-'k^i?^^- 
claim;  '^'  *  *  that  about  October  21,  1902,  the  defendant  un-[/^cuwv^ 
lawfully  entered  upon  a  part  of  such  claim  and  located  the  Rainbow, j^l^'^-^-g^  l 
a  quartz  mining  claim,  the  boundaries  of  which  overlap  those  of  the  f^  ,  < 
Summit ;  that  about  March  8,  1907,  the  defendant,  having  secured  a '  '  ^  ^■^'"^ 
survey  of  its  claim,  applied  for  a  United  States  patent  therefor,  'jc-ka.ka^ 
wrongfully  asserting  that  it  was  in  the  possession  of  the  whole  of  y,  ^i*^ 
the  Rainbow  claim  ;  that  within  the  time  prescribed  the  plaintiff  filed  ^  »  0 
in  the  local  land  office  an  adverse  claim  and  instituted  this  suit.  For  '^^M. , 
a  second  cause  of  suit  it  is  averred  that  on  October  27,  1905,  the  I  30  M 
plaintiff  was  the  owner  and  in  the  possession  of  the  Sunbeam,  a  ^  ft  i  , 
quartz  mining  claim,  which  embraces  practically  the  same  premises  ' 

as  the  Summit,  both  of  which  are  overlapped  by  the  Rainbow.  The  Lfr-yy^ 
answer  denied  the  material  allegations  of  the  complaint.  ^  ^  ^  {jvil^Jb 
The  cause  having  been  tried,  the  suit  was  dismissed,  and  the  plain-  ^-^  ^^ 
tiff  appeals.    Affirmed.  j&ut^it-H 

Moore,  C.  J.  (after  stating  the  facts  as  above). ^^ — The  evidence ,;!^-*'*'~2 
shows  that  a  declaration  was  entered  of  record  in  Book  F,  p.  72,  of    /  wo^/^  ^ 
Placer  Locations  of  Baker  County,  May  6,  1896,  of  which  the  fol-  -^t^v^ 
lowing  is  a  copy  :  U.  n"/"  ' 

"Notice  is  hereby  given  to  whom  it  may  concern,  that  I,  the  undersigned,  ^^  "f- 
citizen  of  the  United  States,  over  the  age  of  twenty-one  years,  have  this  day 
located  under  the  Revised   Statutes  of  the  United  States,   chapter  six,   title  tX/a>-<' 
thirty-two,   the   following  described  placer  mining  ground,   viz. :   20^  acres   of  (.^-rt^    / 
glacerground  in  this  gulch,  claiming  1,500  feet  in  length  by  350  feet  in  width.  V>*- 

This  gulch  empties  into  South  Dixie  creek.     This  gulch  heads  within  a  mile  fVs.O-V'  *- 

oriHe   gulch    that    empties    into   ]\Iormon    Basin,    situated    in   mining  t       ^.\^ 

d^trict.   Baker  couffty,   Oregon.     This  claim  shall  be  known  as  the  'Summit    ^ 
Placer  Mining  Claim,'  and  I  intend  to  work  the  same  in  accordance  with  the  |Xt^ 
local   customs   and   rules  of  miners   in   said  mining   district.     Dated   on   the  ^^^^   , 
ground  this  2d  day  of  May,  1896.  Miles  Ratclifif,  Locator."      jw-**^  ^/ 

It   further   appears   that   when   this   notice   was   given,   the   land-^.^^^^ 
embraced   within  the    Summit  had   been   surveyed   by  the   general      ^ 
government,  but  that  the  claim,  as  now  laid  out,  did  not  conform^'    f*^V  k^J 
with  the  lines  of  the  pubhc  survey,  as  required  by  act  of  Con-Kucf^' < 
gress.  Rev.  St.  U.  S.  §  2329  (U.  S.  Comp.  St.  1901,  p.  1432).  TheMft^ 
reason   assigned    by    the    locator    for   departing    from    such    direc-/3(t^  ^ 
tion  is  that  prior  locations  of  other  claims,  and  the  pecuHar  con-  ^^  ^^^ 
formation  of  the  ground,  necessitated  the  location  of  the  Summit ^^^^^^ 
in  such  a  manner.     The  testimony  of  Ira  L.  Hoffman,  a  surveyor     ^^    > 
who  appeared  as  the  defendant's  witness,  is  to  the  effect  that  the^*^*^^^-*^ 
£.      boundaries  of  the  Summit  cannot  be  established,  with  any  degree Sdu.  ^ 
V^  ,  of  certainty,  from  an  inspection  of  the  recorded  notice.     It  also  ap-  |4,^^^ 
"^  '  pears  from  testimony  that  "this  gulch,"  referred  to  in  the  notice,  and  j^a  j^ 

^  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted.       '  ^  ^  .      C( »   U  < 

V^  -.-  t^^c  c.'^l^^Ju*-.  «\''  Vv^',:  :  .^c  <^  ^  [•='«'-TvvNrt.v»aw-i  tt 

(;>u^iAt    ^^k.t*•v^    ^t'^X  "J^M  i-^"*^  /'^"^'^vv^^  ^A^iU^-fi^,  f^^ 


,     ^     .      226,  LOCATION   OF   LODE   AND   PLACER   CLAIMS. 

»  (r*'rC  in  which  the  Summit  is  located,  heads  at  the  same  place  as  "the!c>H^ 
.^^  gulch  that  empties  into  Mormon  Basin,"  so  that  a  pebble  would  sep-f  -T" 

f^,QnJ    arate  falling  rain  or  melting  snow,  causing  the  water  to  flow  in   -^ — ' 
T^^    either  gulch.    An  inspection  of  the  recorded  notice  imparts  no  infor-t 
•^,   '         mation  to  interested  persons  of  the  definite  location  of  any  claim.      [ 
-^*''*^'  The  statute  in  force  when  the  Summit  was  set  off  required  the 

Ax^*^  posting  of  a  notice  on  the  lode  or  vein  of  a  quartz  claim  (2  Hill's 
"      "^      Ann.  Laws  1892,  §  3828),  but  no  provision  was  made  for  the  locat- 
ing of  placer  claims,  or  for  the  recording  of  notices  thereof.    Placer 
[f^iiji    claims  are  subject  to  entry  and  patent  under  like  circumstances  and  j^ 

jt  "*^  conditions,  and  upon  similar  proceedings  as  are  provided  for  vein  or 
'  *^'/'       lode  claims  (Rev.  St.  U.  S.  §  2329)  ;  that  is,  according  to  the  locarf^ 
<■•  f    '    customs  or  rules  of  miners  in  the  several  mining  districts,  so  far  as  '-v^ 
i  ;  the  same  are  applicable  and  not  inconsistent  with  the  laws  of  the  y^,^ 
United  States  (Rev.  St.  §  2319  [U.  S.  Comp.  St.  1901,  p.  1424]).   ^ 
It  is  unnecessary  to  inquire  whether  or  not  the  custom  or  rule  of   ^^ 
miners  in  the  district  where  this  claim  lies  required  a  notice  of  loca-  '^^jfe^ 
tion  to  be  recorded,  for  if  such  was  essential,  the  notice  hereinbefore  >*- 
designated  is  insufficient,  and  if  no  record  were  necessary  such  no-       ** 
tice  was  ineffectual,  so  that  in  either  case  the  notice  recorded  could 3  1% 
not  initiate  a  right  to  the  premises.^''     '''     *     *  •^'^^^ 

Assuming,  without  deciding,  that  the  act  of  setting  stakes  at  the 
corners  and  at  the  end  of  the  Summit  inaugurated  a  possessory  right  ^^ 
thereto,  we  think  that  such  right  was  not  maintained  by  sufficient 
notoriety  to  be  preserved  by  a  decree,  for  the  testimony  shows  that 
when  the  Rainbow  was  located,  on  search  being  made  in  the  vicin- 
ity for  conflicting  boundaries,  no  monuments  were  found,  except  a 
stake  outside  the  claim,  which  a  witness  said  looked  like  it  had  been 
lying  there  15  years,  and  it  had  no  writing  or  marks  thereon  evi- 
dencing the  location  of  any  claim.  When  the  Rainbow  was  laid  out, 
the  locators  discovered  that  some  improvements  had  been  made  on 
the  ground  where  it  is  now  asserted  the  Summit  was  established,  but 
all  the  work  thereon  appeared  to  have  been  done  many  years  prior 

^°  "It  is  further  contended  that  neither  of  said  certificates  are  sufficient  in 
form,  for  the  reason  neither  contains  a  description  of  the  location  of  the 
claim  with  reference  to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim  as  is  required  by  subdivision  3  of  section  3,  supra.  The 
description  given  in  both  certificates  is  substantially  the  same,  and  is  as  fol- 
lows :  'Said  claim  is  situated  about  two  miles  from  the  town  of  Amargosa.' 
No  direction  is  given,  and  the  claim  might  be  anywhere  within  an  area  of 
from  six  to  eight  square  miles,  and  still  answer  to  the  description  given. 
We  think  it  needs  no  argument  to  convince  the  mind  that  such  a  description 
is  not  a  substantial  compliance  with  the  requirements  of  the  statute,  even 
though  the  courts  are  very  liberal  in  such  matters,  and  ordinarily  it  is  a 
question  of  fact  for  the  jury  to  determine.  Brady  v.  Husby,  21  Nev.  453, 
33  Pac.  801.  So  far  as  the  certificates  of  location  in  question  in  this  case 
are  concerned,  plaintiffs  are  in  no  better  position  than  if  no  certificate  or  cer- 
tificates had  been  made  or  filed."  Norcross,  J.,  in  Ford  v.  Campbell,  29 
-  >     Nev.  578,  92  Pac.  206.  ^  r» 

v^\j  3u4^  **  '  )a  w\A,Wi-^  /rvt>*^  ij^  ^f»*-4-e  *vv't^  Urvr^ 
^kA  "/.  9cje  *>-    V  '    rL  OL^^C^4K^  ^  fiZJU^  1000  (^ 


H 


J^ 


*U-^  -5c^.,.> ,  uoW  ..yw^  ^^_^  5  -^)  aUA^  V^,  t  XV 

thereto ;  one  witness  saying  that  it  seemed  as  if  such  labor  had  been-  <^"^^^ 
performed  in  the  year  1862.  *  *  *  We  do  not  mean  to  be  un-  i/  ^'^ 
derstood  as  holding  that  the  failure  of  a  person  to  find  stakes  on  a  ****-^^" 
placer  claim  would  justify  another  location  embracing  the  whole  or  ^^-^ 
a  part  of  the  premises,  for  it  might  be  that  such  monuments  had  been  *<  «>^ 
purposely  destroyed  by  some  person  who  desired  to  locate  another  '^vfii- 
claim  thereon.  Where,  however,  the  appearance  of  a  mining  claim  C;;  V-t^ 
unmistakably  indicates  an  abandonment  of  the  premises  for  many  p-Vf^  tl 
years,  and  no  stakes  or  other  monuments  mark  the  boundaries,  such  U&vw< 
evidence  warrants  the  assumption  that  all  possessory  right  thereto  [,,„_^,_j.„^^ 
has  been  relincfuished,  and  authorizes  another  location  thereon.  /rH&   4 

The  plaintiff,  on  October  2y,  1905,  located  the  Sunbeam,  a  quartz  .—-'^ 
jnoimng  claim,  the  boundaries  of  which  are  almost  identical  with  thetliilC':' 
"exterior  lines  of  the  Summit,  but  as  the  former  claim  was  not  laido^^^jj::^ 
out  until  after  the  Rainbow,  also  a  quartz  claim,  was  located,  noWvcr-.-r., 
right  thereto,  so  far  as  the  boundaries  thereof  conflict,  can  be  ini-  •    ' 
tiated  by  the  attempted  relocation.    Lindley,  Mines  (2d  Ed.)  §  413.  X  < 

Believing  that  no  error  was  committed  in  dismissing  the  suit,  the  , 
decree  is  affirmed.  O^'U.  ©w  (^^--J-rvx  ^  ■^Ju^C^.^Jii 

^T^    BUFFALO  ZINC  &  COPPER  CO.  v.  CRUMP  et  al.  ruK3^  \C 
1902.     Supreme  Court  of  Arkansas.     70  Ark.  525,  69  S.  W.  572./vt^u1 

Action  by  the  Buffalo  Zinc  &  Copper  Company  against  G.  J.  r:    '^,'  *- 
Crump  and  others.     From  a  judgment  for  defendants,  plaintiff  ap-'^^'^^* 
peals.    Reversed.  /^^^"^ 

Battle,    J.*" — This    action    involves    the    validity    of    mining  0  ^  "^ 
claims.     *     *     *  ^    CM  ^ 

Th^  following  questions  are  presented  by  the  pleadings  and  evi-  S'y^^^ 
dence  in  this  case  for  our  consideration  and  decision  ;     *     *     *         -j-U-o-V  "^ 

Third.    Were  the  locations  of  the  Bell  and  White  Eagle  claims  by  Uaacxo. 
Rose  Ann  Kaylor  and  Francis  E.  Blake  valid  ?     *     *     *  U.a,<Ax 

3.    Appellees  insist  that  the  locations  of  the  Bell  and  White  Eagle  ,.,j^^.,^, 
claims,  as  made  by  Rose  Ann  Kaylor  and  Francis  E.  Blake,  were  in-  ^T      , 
valid.    They  say  that  the  description  of  the  Bell  claim  in  the  notice.     '"^^ 
of  location  by  Kaylor  was  insufficient.    It  is  as  follows:  vK"*^^  i 

"Beginning  at  the  N.  W.  corner  of  El  Williams,  1 — 16,  at  a  black  oak  post ;  ^T     L 
thence  1,500  feet  north  between  Sec.  10  &  11  to  a  dogwood  bush;  thence  600  Lyx^^J^ 
feet  E.  to  a  dogwood  bush;  thence  1,500  feet  south  to  oak  post  in  Williams'  C/CAji-^^ 
field;  thence  600  feet  to  place  of  beginning.     This  being  in   the  northwest   ^^      ^ 
^  quarter  of  the  southwest  quarter,  Sec.  11,  T.  17,  range  15  W."  tA  ^ 

i^^A'-b     They  base  their  contention  upon  the  fact  that  there  is  nothing  in    ' 


1^ 


the  record  which  shows  what  is  meant  by  "El  Williams,  i — 16,"  U^ 
"Parts  of  the  opinion  are  omitted.      <^*-^ ^Jr^d^Z^    "    ^^^^^  ^^  ^-^^n^ 


"W.  228  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

named  in  the  notice  as  the  beginning  point.    But  it  does  show  that  it 

was  at  a  black  oak  post,  and  1,500  feet  north  of  it  was  a  dogwood 
"'"  '  bush  between  sections  10  and  11,  which  must  have  been  on  the  hne 
"-^        between  those  sections,  and  that  the  claim  described  was  in  the  N. 

W.  1/4  of  the  S.  W.  1/4  of  section  11,  township  17,  range  15  W.,  in 
^. ^        Marion  county,  in  this  state.    The  presumption  is  that  it  (El  Will- 
/<-)•  '       iams,  I — 16)  is  a  well-known  natural  object,  until  the  contrary  ap- 
Vt)'       pears.    Hammer  v.  Mining  Co.  130  U.  S.  291,  9  Sup.  Ct.  548,  32  L.  ||^/ 
■)   4       Ed.  964,  16  Morr.  Min.  Rep.  125,  132.    And  nothing  is  shown  to  the  11^ 
■-Cuf      contrary.     The  sufficiency  of  the  description  is  not  attacked  upon  " 
jW.^any  other  ground. 

5  What  we  have  said  of  the  Bell  claim  is  equally  true  of  the  White 

^^^  Eagle  claim.     *     *     * 

*^  'W*  They  say  that  the  notices  of  the  location  of  these  claims  were  not 
■tf^P  ^  .  recorded  within  30  days.  The  record  shows  that  they  were  recorded 
i^^ws  -  before  any  adverse  rights  to  the  same  ground  were  acquired.  This 
h^        is  sufficient.     No  damage  was  done  by  the  failure,  and  no  one  can 

complain  that  it  was  not  done  at  an  earlier  day.  Faxon  v.  Barnard 
^  '"'  (C,  C.)  2  McCrary,  44,  4  Fed.  702,  9  Morr.  Min.  Rep.  515  ;  Preston 
,  .-vv.  Hunter,  15  C.  C.  A.  148,  67  Fed.  996;  McGinnis  v.  Egbert,  8 
.  •'»**^Colo.  41,  5  Pac.  652,  15  Morr.  Min.  Rep.  329.  *  *  * 
:  yfc^'  It  follows  that  the  mining  claims  of  the  appellees,  so  far  as  they 
^i\^^  conflict  with  that  of  appellant  as  amended,  should  have  been  can- 
^^^^r/celed  by  the  trial  court. 

""^Tr,  /  ^^  ^^  therefore  ordered  that  the  decree  appealed  from  be  reversed, 
'  ^^  ■'  and  that  this  cause  be  remanded,  with  instructions  to  the  court  to 
(,  Z        enter  a  decree  in  accordance  with  this  opinion.  ^    ^,       -/-^ 

,.^  V^er^  ^     BRAMLETT  et  al.  v.  FCICK  It  al.    vC^u^^^  ^^  ^ 

<s^         1899.     Supreme  Court  of  Montana.     23  Mont.  95,  57  Pac.  869.    ' 

"^^-^  ^  J  Action  by  J.  H.  Bramlett  and  others  against  John  J.  Flick  and 

-w^-*t!  another.    From  a  judgment  in  favor  of  plaintiffs,  defendants  appeal. 

^  X  Reversed. 

jk^  Brantly,  C.  J.*^ — In  this  action  the  plaintiffs  seek  to  recover  pos- 

'v.^,./  session  from  defendants  of  a  portion  of  the  surface  ground  of  the 

i^  /?.  Blacktail  lode  claim,  situate  in  Missoula   (now  Flathead)   county. 

^^^  *     *     *     The  defendants,  after  denying  the  allegations  in  the  com- 

,    t .  plaint,  set  up  title,  right  of  possession,  and  possession,  in  themselves, 

^  *  under  a  location  called  the  "Bell  Lode  Claim,"  alleged  to  have  been 

Itt '  made  by  them  prior  to  that  of  plaintiffs.     *     *     *     The  trial  in  the 
court  below  resulted  in  a  verdict  and  judgment  for  the  plaintiffs. 


"  Parts  of  the  opinion  are  omitted.  d        <? 


RECORD.  220    . ^  4 

•  •     } 

The  case  comes  here,  on  appeal  from  the  judgment  and  an  order  ""^^^ 
overriding  defendants'  motion  for  a  new  trial.  try-tT* 

I.  The  plaintiffs  first  produced  evidence  of  what  plaintiff  Bram-  ^ Q^-^ 
lett,  who  made  the  location  of  the  Blacktail  claim,  did  at  the  time  of  C-t^ul^ 
the  location,  in  the  way  of  making  a  discovery,  posting  his  notice, 
and  marking  the  boundaries  of  the  claim.  His  evidence  was  supple- 
mented by  that  of  A.  L.  Jaqueth,  a  mining  engineer,  who  had  made 
a  survey  of  both  claims  a  few  days  before  the  hearing.  As  an  ex- 
hibit to  his  statement,  there  was  introduced  in  evidence  a  plat  or  dia- 
gram made  by  him  from  this  survey,  showing  the  relative  positions 
of  both  claims,  the  courses  and  extent  of  their  boundary  lines,  and 
the  area  in  conflict.  For  illustration,  and  for  convenience  for  refer- 
ence, this  diagram  is  inserted  here : 


•eo'.  lo  cmTi 

Thereupon,  over  the  objection  of  the  defendants,  the  court  ad-  4^LLi 
mitted  in  evidence  a  copy  of  the  notice  of  location  of  the  Blacktail  i*^iv#A 
claim,  filed  for  record  on  August  i,  1892.  The  ground  of  the  objec-  i^M«. 
tion  was  that  it  is  incompetent,  immaterial,  and  irrelevant,  in  that  it  ^Nju.'Cf 
contains  no  such  description  of  the  claim,  with  reference  to  natural  |^^./-; 
objects  or  permanent  monuments,  as  will  identify  the  claim,  and  that  j-^^^ 
the  evidence  up  to  that  point  showed  that  the  claim  is  not  correctly  f.  f^  f>, 

^Zl.    £?"?U*Mi  fU)^^   u. .  '^^  «ii«^W  •^ft^.  HvUU«^ 


t:>U 


^fu^ 


230  LOCATION    OF    LODE   AND    PLx\CER    CLAIMS. 


described  in  the  notice.  The  notice,  after  stating  that  the  plaintiffs' 
claim  extends  750  feet  easterly  and  westerly  from  the  discovery  shaft 
upon  the  lode,  and  300  feet  on  either  side  of  the  center  or  middle 
thereof,  proceeds :  "This  lode  is  situated  in  an  unorganized  mining 
district  in  the  county  of  Missoula  and  state  of  Montana,  on  a  branch 
of  Foundation  Fisher  creek,  about  six  miles  N.  W.  of  where  Thomp- 
son Falls  crosses  same.  The  adjoining  claims  are  none,  the  Golden 
Eagle  being  about  one  mile  S.  E.  from  the  Blacktail.  The  exterior 
boundaries  of  this  location  are  distinctly  marked  by  posts  or  monu- 
ments at  each  corner  of  the  claim,  so  that  its  boundaries  can  be  read- 
ily traced,  viz. :  Beginning  at  N.  E.  corner  post,  marked  'A,' and  run- 
ning from  thence  six  hundred  feet  in  a  southerly  direction  to  S.  E. 
corner  post,  marked  'B' ;  from  thence  fifteen  hundred  feet  in  a  west- 
erly direction  to  S.  W.  corner  post,  marked  'C ;  from  thence  six 
hundred  feet  in  a  northerly  direction  to  N.  W.  corner  post  marked 
'D' ;  and  from  thence  fifteen  hundred  feet,  in  an  easterly  direction, 
back  to  post  A,  place  of  beginning." 

The  evidence  of  plaintiff  Bramlett  tended  to  show  that  *  *  * 
there  is  no,such  stream  as  Foundation  Fisher  creek,  but  that  Founda- 
tion is  a  flat  down  below  on  the  main  or  West  Fisher  creek,  where  the 
Thompson  Falls  trail  crosses  West  Fisher  creek,  and  from  which 
the  trail  up  to  Bramlett  creek  and  the  Blacktail  country  leads ;  that 
the  Blacktail  claim  is  in  fact  located  on  West  Fisher  creek,  and  not 
on  a  branch  of  it ;  that  at  the  time  the  location  was  made  he  supposed 
it  was  on  a  branch  of  the  West  Fisher,  but  that  it  is  upon  the  main 
stream ;  *  *  *  and  that  the  plat  introduced  in  evidence  is  a 
fairly  correct  representation  of  the  claims,  and  their  relative  posi- 
tions.    *     *     * 

The  reference  in  the  notice  to  Thompson  Falls  crossing  and  Foun- 
dation Fisher  creek  certainly  gives  no  aid  in  identifying  the  claim, 
in  view  of  Bramlett's  statement  that  no  such  place  exists.    But  this 
reference  may  be  omitted  entirely,  and  still  enough  be  left  in  the  no- 
tice, by  way  of  reference  to  the  other  objects,  to  go  to  a  jury,  under 
the  evidence  applying  the  other  objects  mentioned  to  the  locality  sur- 
rounding the  claim,  and  identifying  the  monuments  upon  the  claim 
itself.  Lindl.  Mines,  §  383 ;  Flavin  v.  Mattingly,  8  Mont.  242,  19  Pac. 
384;  Gamer  v.  Glenn,  8  Mont.  371,  20  Pac.  654;  O'Donnell  v.  Glenn, 
8  Mont.  248,  19  Pac.  302 ;  Hoffman  v.  Beecher,  12  Mont.  489,  31  Pac. 
"^'         92;  Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728;  Russell  v.  Chuma- 
,.     ."       sero,  4  Mont.  309,  i  Pac.  713 ;  Brady  v.  Husby,  21  Nev.  453,  33  Pac. 
801.    'Tt  is  not  for  the  court  to  say,  by  merely  looking  at  a  record/ 
f...         or  declaratory  statement,  what  are  or  what  are  not  permanent  objects 
or  monuments.  That  is  a  matter  of  proof.   A  stake  or  a  stone  of  the 
•lO^        proper  size,  and  properly  marked,  may  be  a  permanent  monument.  A 
declaratory  statement  or  record  thereof,  with  a  reference  to  perma- 
nent stakes  or  monuments,  which  did  not  exist  as  a  fact  on  the 
ground,  would  not  be  good,  while  a  defective  description  in  the  rec- 


r^j^* 


RECORD.  231  ^^<X-- 

ord  or  declaratory  statement  might  be  cured  if  the  stakes  or  monu- 
ments on  the  ground  identified  the  claim."  Russell  v.  Chumasero, 
supra.  The  reference  to  the  Golden  Eagle  claim  is  definite  enough  to  *C**-*^ 
allow  the  notice  to  be  submitted  to  the  jury.*^  ^'^  *  *  The  fact  />|^,^,^ 
that  the  Golden  Eagle  claim  had  been  located  by  Bramlett  himself  on  ^^  p  • 
the  17th  of  the  previous  month  did  not  necessarily  raise  a  presump-  ^  ^^ 
tion  that  it  was  not  well  known  at  the  time  of  the  location  of  the  BtCJU 
Blacktail.  In  the  absence  of  proof  to  the  contrary,  the  presumption  ^->. 
attached  that  it  w^as  well  known.  Hammer  v.  Alilling  Co.,  130  U.  S.  ,  _f%K 
291,  9  Sup.  Ct.  548;  Id.,  6  ]\Iont.  53,  8  Pac.  153;  Book  v.  Mining  mT^ 
Co.,  58  Fed.  106.  It  is  fair  to  suppose  that  such  was  the  case,  since />  >1^ 
it  appears  from  the  proof  that  it  was  among  the  first  locations  madq,^  .  V. 
in  that  part  of  the  country,  and  that  the  miners  going  up  into  that  ^  '^^'^ 
section  passed  up  and  down  Bramlett  creek  near  where  it  was  lo-  l^^fi^^ 
cated.  At  any  rate,  the  question  was  for  the  jury.  Dillon  v.  Bayliss,  |^,„vj 
II  ]\Iont.  171,  2y  Pac.  725;  Metcalf  v.  Prescott,  10  Mont.  283,  25  ^^ 
Pac.  1037,  and  the  other  authorities  cited.  Even  upon  the  presump-  f^^^-^ 
tion  that  this  claim  was  not  well  known,  still  there  is  reference  to  4J^C- 
'  marked  stakes  and  trees  upon  the  Blacktaif  claim  itself,  which  the  ^wvaJO 
^  jury,  under  the  authority  of  the  cases  cited,  and  under  the  proof  so  JLj^ 
^  far  given,  might  find  to  be  permanent  monuments.  *  *  *  The  "^^"^^^^ 
■  defendants  contend  that  the  five  posts  put  upon  the  claim  by  Bram-  V*-''^ 
lett  do  not  mark  the  boundaries  sufficiently.  But,  under  the  authori- J  ^  ^^^  ^ 
ties  already  cited,  this  was  for  the  jury,  and  not  for  the  court,  to  say,  * 
after  hearing  the  proof.     *     *     *  <9i,w</i 

5.  With  the  single  exception  of  the  particulars  just  mentioned,  the  j^-^JW 
rulings  of  the  trial  court  upon  the  admission  and  exclusion  of  evi-  »^  V 
dence  were  correct,  so  far  as  our  attention  has  been  called  to  them.T*-^^^' 
In  instructing  the  jury,  however,  the  court  adopted  an  erroneous  jUg^T  1 
view  of  the  law  touching  the  rights  of  defendants  under  the  Bell  lo-  ^L^ 
cation.  The  evidence  introduced  by  defendants  tended  to  establish  fy"^*^ 
the  following:  ^Cv^ 

Defendant  Flick  went  alone  upon  the  ground  covered  by  the  Bel'  ^^ 
claim  on  July  8,  1892, — four  days  before  Bramlett  went  there.  He  ^*^ 
was  without  tools,  but  w^ent  over  the  ground  to  see  if  he  could  find  KoH 
anything.  At  the  point  marked  on  the  plat  "Discovery  Shaft,"  he  (g^^^ 
found  a  lead  cropping  out  of  quartz  in  place,  bearing  gold.  ^^^^^ ^/^j^A^ 
examining  the  lead,  which  he  could  follow  along  by  its  croppings,  ^^VV"*^" 
cleaned  off  the  surface  of  a  tree  standing  at  the  discovery  point,  and  ^-^  ^'^ 
wrote  upon  it,  in  plain  view :  4-%-/^ 

"The  Bell  Claim.     Located  July  8th,  1892.     I  claim  1,500  feet  in  lengthy  on  ^— V^ 
this  lead,  with  twenty  days  for  prospecting.  [Signed]       J.  J.  Flick."       (^7^ 

*^"In  the  record  of  the  Dutchman  lode,  not  only  were  the  stakes  of  the  (hxT* 
claim  called  for,  but  the  call  from  post  No.  5  to  post  No.  6  was  for  a  line   . 
'joining  with  the  southwesterly  end  line  of  the  Toronto'  mine.     This  was  a  fv--*:.    ' 

reference  to  a  permanent  monument  sufficient  to  identify  the  claim."     Mar-  }     

shall,  District  Judge,  in  ^  Smith  v.  Newell,  86  Fed.  56,  58-59.  *^  ^Z 

iAjL.ti  u/LcjJ^f^   ?  ntA^^M-t  uH^r-[&\  (Hdc*-*>O.U  V 


W   »«  '"'■V^^^  ^  "-V    b*r%^  •■Ak.'J/  ^. 


,Jj^  is^Y  fC^i^-^'*^-^-MS/    /''lA-^^  f-K^   /vy^  /r>-''>^ 

232  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

fli^  Thereupon,  after  prospecting  along  the  lead  for  a  while,  he  went 

«»'        away  to  look  for  feed  for  his  horses.  Having  found  none,  the  foUow- 

i^        ing  days  until  the  14th  were  spent  in  looking  for  a  camping  place 

where  it  could  be  had.  He  returned  to  the  claim  on  the  14th  in  com- 
>VY'  pany  with  one  Shaughenessy.  They  prospected  on  the  claim  and  in 
tj-^  '     ^^^  vicinity  on  that  and  the  following  day.    On  the  i6th,  after  pros- 

pecting  over  the  ground  again  with  Shaughenessy,  he  proceeded  to 
tftf-^-v  complete  the  location  by  putting  up  four  corner  and  two  end  stakes, 
V  beginning  at  the  east  end  center  stake.   He  put  up  this  and  the  north- 

■""y^  "^ast  and  southeast  corners,  blazing  along  the  line  as  he  went.  He 
^^^l>(  then  returned  to  the  discovery,  and  blazed  along  through  on  the  out- 
^  fft,..  ^""^P  ^^  ^^^  ^^^^  ^^^'  where  he  put  up  two  corner  stakes  and  a  center 
jL  '*]  stake,  blazing  out  the  lines.  The  stakes  were  made  by  cutting  off 
A»^y'  trees  four  or  five  feet  from  the  ground  and  squaring  the  stumps,  ex- 
U^fk^,  cept  at  the  northwest  corner,  where  he  found  a  stump  20  feet  high, 
.,^^^      which  he  squared  as  it  stood.   All  of  these  monuments  were  marked, 

"Northeast  corner  of  the  Bell  claim,"  "East  end  center  stake  of  the 


*1 »  ^"^  Bell  claim,"  etc.  The  distances  and  directions  were  estimated  ;  the 
<fc^.y^_jj^ntention  being  to  locate  100  feet  easterly  and  1,400  feet  westerly 
|f  %  jT-  from  the  discovery,  and  300  feet  on  either  side.  A  notice  was  posted 
r  ^  at  the  discovery,  substantially  the  same  as  the  declaratory  statement 
t^^-  filed  for  record.  This  declaratory  statement  was  subsequently  pre- 
^]|jJ^      pared  by  a  notary  and  left  with  him  for  record,  but  was  not  recorded 

.  until  August  2,  1892.   A  copy  of  this  was  introduced  in  evidence.   No 

*V  ^*^  objection  was  made  as  to  its  sufficiency  in  substance  and  form.  It  is 
I  Cl      "°^  necessary  to  note  it,  further  than  to  mention  the  fact  that  it  con- 

»  »  tains  the  statement  that  said  quartz  lode  was  discovered  on  July  8, 
^^^"^  1892.  Other  evidence  tended  to  establish  the  good  faith  of  Flick  in 
J^  Cw^  completing  his  location ;  claiming  that  his  right  dated  from  July  8th, 
the  time  at  which  he  made  his  discoverv.   Defendant  Rockefeller  was 


joined  as  one  of  the  locators  when  the  declaratory  statement  was 
AAjfi-ti  made  out. 

|s  Defendants'  contention  at  the  trial  was  that.  Flick  having  made  his 

'      .     discovery  and  posted  his  notice  upon  the  ground  on  the  8th  of  July, 

^  ^^    their  claim  thereto  was  superior  to  that  of  plaintiffs,  that  this  act  on 

J         the  part  of  Flick  withdrew  the  ground  which  was  claimed  in  his  no- 

f         tice  from  exploration  by  others,  and  that,  plaintiffs  having  made  their 

f^^xM   location  within  the  20  days  during  which  the  ground  was  not  open  to 

j\j^^  location,  their  location  was  void,  as  to  the  conflicting  area,  and  they 

^  acquired  no  right  thereto,  notwithstanding  defendants  failed  to  make 

^    their  record  within  the  20  days.  The  court  entertained  a  different 

view  of  the  law,  and  proceeded  upon  the  theory  that,  inasmuch  as  the 

plaintiffs  made  their  location  and  recorded  their  declaration  before 

the  defendants  did,  they  acquired  a  right  to  the  conflicting  area,  to 

\J^''i^       the  exclusion  of  defendants.    We  quote  the  fourth  paragraph  of  the 

^__^      charge,  as  illustrating  the  view  the  court  held,  and  the  theory  upon 

^"^      which  the  case  was  submitted  to  the  jury  :  ^  IjvJ 


"You  are  instructed  that  if  you  find  from  the  evidence  that  the  de-  •^  Y^' 
fendants  discovered  the  Bell  lode  or  claim  on  the  8th  day  of  July,  »^,J.4^  M 
1892,  before  they  had  a  valid  or  could  have  had  a  valid  and  subsist-  ^ 

ing  right  to  said  lode  or  claim,  as  against  any  person  who  had  ac-  5**-*n 
quired  an  adverse  right  thereto,  the  defendants  must  have  distinctly  If^/y^^ 
marked  the  location  on  the  ground,  so  that  its  boundaries  could  be^       k 
readily  traced,  and  made  and  filed  in  the  office  of  the  county  clerk  I  "-tf^ 
and  recorder  in  the  county  where  such  claim  was  situated  an  affidavit  y^^^ 
of  the  location  thereof.    If  the  defendants  failed  to  do  any  one  of 
these  things,  then,  as  against  the  plaintiffs,  if  the  plaintiffs  had  made  C«-n^ 
a  valid  location  of  the  same,  or  any  portion  of  the  same  ground,  by  ^^^^j-^^ 
discovery  and  location  and  recording,  between  the  said  8th  day  of  *^ 

July,  1892,  and  the  2d  day  of  August,  1892,  the  plaintiffs'  right  to  .  ^5U. 
the  land  in  controversy  would  be  valid,  and  a  better  right,  and  J^^  ^%j„,^jj;j 
will  find  for  the  plaintiffs."  v^ 

Under  the  court's  view  of  the  law,  as  stated  here,  the  jury  could  T^*%.  <J 
not  have  found  for  the  defendants,  in  any  event,  unless  they  found  ^^^^  05Cl 
Bramlett's  location  bad ;  for  there  is  no  controversy  but  that  Bram-  . 
lett  finished  whatever  he  did  in  the  way  of  making  his  location  on  l.-C^« 
the  1 2th,  or  that  he  filed  his  statement  for  record  on  the  twentieth  ^^ 
day  thereafter.    And  although  the  defendant  Flick  made  his  dis-  VV 
I'covery  and  posted  his  notice  on  the  8th,  still  this  gave  him  no  rights  •^'^Si*.^ 
[at  all,  if  he  did  not  finish  his  location  within  the  20  days,  and  get  his  A  ^  . 
i  notice  on  record,  no  matter  what  were  his  intentions,  or  whether  he  a 
1 1  was  acting  in  good  faith  or  not.  Co-«f-A. 

The  question  presented  is  not  without  difficulty,  but  we  think  the       ^  ^ 
result  of  the  decisions  of  the  courts  upon  similar  controversies  log-    ' 
ically  leads  to  the  conclusion  that,  if  Flick  actually  posted  the  noticeC«X*wa 
^  :  in  plain  view  upon  the  exposed  lead,  as  claimed  by  him,  on  July  8th,  J_X^ 
^     and  thereafter  during  the  20  days  intended  in  good  faith  to  secure  yT*  \ 
I  his  claim  by  completing  his  location,  no  failure  on  his  part  to  make   |-««.^  ,: 
i  such  a  location  and  proper  record  within  the  20  days  would  inure  to  ■^ 

»  the  benefit  of  plaintiffs.  In  Doe  v.  Mining  Co.,  70  Fed.  455  (a  similar  ^/  ' 
case,  decided  in  1895 j,  it  was  held  that  the  discoverer  of  a  mmeral  .^vv-,^ 
vein  should  have  a  reasonable  time  after  his  discovery  to  complete-  ,«^  j^ 
his  location ;  the  length  of  time  depending  upon  the  situation  of  the  ''I' 
ground,  its  character,  the  means  of  marking,  the  boundaries,  and  tne  |4-c^^i 
abilities  of  the  discoverer  to  ascertain  the  course  or  strike  of  the  vein  ^^^^^.^j^ 
The  court  held  this  to  be  the  rule  in  the  absence  of  local  rules  and  ^ 

regulations  fixing  the  time  within  which  the  location  might  be  com-  l-vt  C* 
pleted.  In  this  case  20  days  were  held  to  be  reasonable.  The  supreme  ^>^  ^ 
court  of  Nevada  announces  the  same  rule.  Gleeson  v.  Mmmg  Co.,  a^> 
13  Nev.  442.  Wherever  there  are  statutory  provisions  fixing  the  time  I  "* /*^ 
within  which,  after  discovery,  the  prescribed  work  necessary  to  a  ^Um 
valid  location  must  be  done  in  order  to  secure  the  claim,  it  is  held  ^^^,^ 
that  the  discoverer  has  the  full  time  provided  in  the  statute  to  com-  ^  ^^ 
plete  it.   Lindl.  Mines,  §  339;  Omar  v.  Sopar,  11  Colo.  380,  i^^^^.  ''^^T^ 


f  234  LOCATION    OF    LODE   AND   PLACER    CLAIMS. 

I^  •         443;  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560;  Marshall  v. 

^•^.js-^-  Manufacturing  Co.,  i  S.  D.  350,  47  N.  W.  290;  Sanders  v.  Noble, 

^      supra.   Under  our  statute  now  in  force  (Pol.  Code  1895,  §§  3610- 

~  '     ""   3612),  at  the  time  of  discovery  a  notice  must  be  posted  at  the  point 

.»    of  discovery,  and  it  is  provided  therein  what  this  notice  shall  contain. 

.  %The  statutes  of  Colorado  and  South  Dakota  contain  similar  provi- 

^f    ^       sions.    In  Sanders  v.  Noble,  supra,  following-  the  authorities  cited, 

-A^jc*.^^    this  court  held  that,  upon  the  posting  of  the  notice  at  the  discovery 

1^        in  compliance  with  the  provisions  of  the  statute,  the  prospector  not 

^  only  has  the  full  90  days  in  which  to  do  the  work  necessary,  but  that 

f  in  marking  his  boundaries  after  the  work  is  done  he  may  also  swing 

\yxi\         h^s  claim  so  as  to  make  it  cover  the  lead  to  the  extent  claimed,  to 

the  exclusion  of  others  who  have  sought  in  the  meantime  to  occupy 

ground  within  the  possible  limits  of  the  claim.    Our  statute  of  1887, 

under  which  the  locations  involved  here  were  made,  contained  no 

/provision  requiring  a  notice  to  be  posted,  but  it  allowed  20  days  in 

^    which  to   complete  the   location  and  make  the   necessary   record. 

ti  aL/*    Comp.  St.  div.  5,  §  1477.     It  therefore  seems  to  be  the  inevitable 

V^W^*  conclusion  from  the  authorities  that  the  defendant  Flick,  if  he  posted 

,  f  4  I       his  notice  in  good  faith,  in  plain  view,  with  the  intention  to  complete 

^>   1    his  location  within  the  prescribed  20  days,  after  prospecting  suffi- 

*  ^  O    -  ciently  to  enable  him  to  determine  the  course  or  strike  of  the  vein, 

1/^  thereby  acquired  a  right  to  all  the  ground  along  the  lead  legitimately 

^^^  f^        covered  by  his  notice,  to  the  exclusion  of  any  person  endeavoring  to 

locate  any  part  of  it  by  means  of  a  junior  discovery. 

Recurring  now  to  the  notice  posted,  the  amount  claimed  is  simply 

4ii^  1,500  feet  along  the  lead;  nothing  being  said  as  to  the  direction  in 

.  which  this  was  to  be  measured.   In  Erhardt  v.  Boaro,  supra,  a  similar 

'   ■  notice  was  considered  by  the  supreme  court  of  the  United  States. 

tj..,.  In  commenting  upon  it,  Mr.  Justice  Field  said : 

"The  written  notice  posted  on  the  stake  at  the  point  of  discovery 

*     *     ^     declares  that  they  [the  locators]  claim  fifteen  hundred  feet 

on  the  'lode,  vein,  or  deposit.'    It  thus  informed  all  persons  subse- 

<-y  ..       quently  seeking  to  excavate  and  open  the  lode  or  vein  that  the  lo- 

^       •        cators  claimed  the  whole  extent  along  its  course  which  the  law  per- 

5^  ,  j^  J    mitted  them  to  take.    It  is,  indeed,  indefinite,  in  not  stating  the  num- 

j^Jk       ber  of  feet  claimed  on  each  side  of  the  discovery  point,  and  must 

therefore  be  limited  to  an  equal  number  on  each  side ;  that  is  to  seven 

l/^        hundred  and  fifty  feet  on  the  course  of  the  lode  or  vein  in  each  di- 

j^j^^Jb^    rection  from  that  point.   To  that  extent,  as  a  notice  of  discovery  and 

#s,  ^        original  location,  it  is  sufficient." 

K^h^  In  posting  the  notice  he  did  upon  the  lead,  we  are  of  the  opinion 

J  that  Flick  thereby  established  a  right  for  the  statutory  period  of  20 

J         days  to  1,500  feet  along  the  lead,  but  that  he  was  limited  in  this  right 

f"  7  i«/    to  750  feet  on  either  side  of  the  point  of  discovery.   The  fact  that  in 

making  the  location  thereafter  he  included  within  his  boundaries 

ground  not  legitimately  covered  by  his  notice,  if  this  was  done  in 


RECORD.  2^;     .       v' 

good  faith,  as  the  result  of  ignorance  or  inadvertence  merely,  would  V-^.*,  i 
not  invalidate  his  claim,  in  so  far  as  it  includes  what  was  legitimately  «•"  iA> 
covered  by  the  notice.  In  no  event  would  any  error  or  misprision  on  *t  ^j^ 
his  part  in  endeavoring  in  good  faith  to  complete  his  location  inure  '^--•^ 
to  the  benefit  of  the  plaintiffs  under  their  location,  made  on  July  12th,  ^  ^"^^ 
as  to  any  ground  covered  by  it  which  comes  within  the  limits  em-  *,— ^^. 
braced  by  Flick's  notice.  To  the  extent,  then,  of  750  feet  along  the  73i^ 
lead  easterly  and  westerly  from  the  discovery  on  the  Bell  claim,  the  AJu*^ 
ground  was  not  open  to  exploration  during  20  days  after  July  8th.  v^a^Ha 
In  so  far,  therefore,  as  any  of  this  ground  is  covered  by  the  Black-  v 
tail  claim,  the  latter  should  be  held  invalid,  provided  Flick's  good  5^'''^'^ 
faith  in  posting  his  notice  is  established  by  the  proof.  The  instruc-  <»  UfTH. 
tions  of  the  court  on  this  branch  of  the  case,  as  illustrated  by  the  ..  ^^ 
paragraph  quoted,  were  therefore  erroneous  and  prejudicial  to  the  Jj^  ^^ 
defendants.  They  are  therefore  entitled  to  a  new  trial  upon  the  lines  rVV  1 
herein  indicated.     =i=     *     *  M.-wi  t 

Let  the  judgment  and  order  appealed  from  be  reversed,  and  the  ^^ 
cause  be  remanded,  with  directions  to  grant  defendants  a  new  trial,  ^'•w^'^ 
Reversed  and  remanded.  ..  i   '^..J^  >    L^  «^^  ^w-fTT  C-t^CTZ, 

TALAI ADGE  et  al.  v.  ST.  JOHN  et  al.  ^  ^  r-^.v^JL 

1900.     Supreme  Court  of  California.     129  Cal.  430,  62  Pac.  79.    V^.  Cr 

Action  by  W.  S.  Talmadge  and  others  against  A.  C.  St.  John  and     "^^ 
others  for  the  possession  of  certain  mineral  lands  and  for  an  injunc-  ^'i(&kJk«j(ji 
tion.   There  was  a  judgment  for  plaintiff's,  and  from  an  order  grant- -^        <ei 
ing  defendants  a  new  trial,  plaintiffs  appeal.   Affirmed.  ' '     ' 

Henshaw,  J.*^ — *  '•'  *  The  second  contention  against  the  va-  *^  ^  * 
-"""^ lidity  of  defendants'  notice  is  that  the  description  is  inadequate,  and  |jfei|^^ 
^        that  the  law  requires  that  the  notice  shall  contain  not  only  a  descrip-  ' 

tion  of  the  exterior  boundaries  as  marked  upon  the  ground,  but  also  '  '- 
1  {  such  a  description  as  will,  in  addition,  identify  the  claim  by  reference  H-^Jm* 
to  some  natural  object  or  permanent  monument.  The  description  in  |^  ^^ 
question  locates  the  claim  as  "commencing  at  a  monument  at  the  cen-  yw  ^^jj, 
ter  of  the  West  end  line  thence  running  Northerly  300  feet  to  a  stone  ^ 
monument  at  the  N.  W.  corner  thence  1500  feet  Easterly  to  a  stone  *'**'^ 

monument  being  the  N.  E.  corner  thence  Southerly  300  feet  to  a  ".iv^^^  * 
stone  monument,  being  the  center  of  the  East  end  line  thence  South-  .\  ( ^       , 
erly  300  feet  to  a  stone  monument  being  the  S.  E.  corner  thence    . 
Westerly   1500  feet  to  a  stone  monument  being  the  S.  W.  corner    "'\ 
thence  Northerly  300  feet  to  the  point  of  beginning."    As  is  said  in    -  5  . 
Mining  Co.  v.  Callison,  5  Sawy.  439,  Fed.  Cas.  No.  9,886:  "The  ob-    , 
ject  of  any  notice  at  all  being  to  guide  a  subsequent  locator  and  af- 

''Part  of  the  opinion  is  omitted.         VVs.  $  tf'/tlSi^^    ***"■  '  *^ 


t.         MX 


(^ 


I-  ^  2^6  LOCATION    OF   LODE   AND    PLACER    CLAIMS. 

*^  f         ford  him  information  as  to  the  extent  of  the  claim  of  the  prior  lo- 
j^.  lator,  whatever  does  this  fairly  and  reasonably  should  be  held  a  good 

notice.    Great  injustice  would  follow  if  years  after  a  miner  had  lo- 
cated a  claim,  and  taken  possession  and  worked  upon  it  in  good  faith, 


tf- 


M» 


I,  his  notice  of  location  were  to  be  subjected  to  any  very  nice  criticism." 


fwV 


In  this  notice  the  exterior  boundaries  are  described  and  the  corners 
of  the  claim  fixed  by  reference  to  permanent  stone  monuments,  .We , ,  " 
0d»^  do  not  think  that,  in  the  particular  matter  under  consideration,  the-'ipr 
*  k»Urf  Statute  of  this  state  requires  more  than  is  required  by  the  Revised  ^ 
%,  ^  Statutes  of  the  United  States.  Both  laws  require  a  description  by  *^ 
•M*.*'  ;  reference  to  some  natural  object  or  permanent  monument,  such  a^';^>^ 
gl^  will  identify  the  claim.    Touching  this  requirement,  Judge  Sawyer, 

,.       in  the  North  Noonday  Case,  6  Sawy.  299,  i  Fed.  522,  says :    "TheL'ifi 
v*^         natural  objects  or  permanent  objects  here  referred  to  are  not  re-  .     . 
^  f        quired  to  be  on  the  ground  located,  although  they  may  be,  and  the  ^'"-^^ 
J^  natural  object  may  consist  of  any  fixed  natural  object,  and  such  per-  (^    ^ 

^  •        manent  monument  may  consist  of  a  permanent  post  or  stake  firmly  \ 
Q  planted  in  the  ground,  or  in  a  shaft  sunk  in  the  ground."     The    '"^ 

'  stone  monuments  referred  to  in  this  notice  were  certainly  within     .^ 

VVc       the  interpretation  of  the  statute  thus  given,  and  universally  followed.      ^ 
,^  (^        Moreover,  when  the  plaintiffs  went  upon  this  mining  ground  they  \"^ ' 
were  confronted  with  ample  evidence  touching  its  occupancy  and  I  ^ 
'Md^vc  prior  location.   The  tent,  bedding,  and  tools  of  the  defendants  were  \'Y' 
-»        there.   Jennings,  an  employe,  was  holding  possession  for  them.   The  / 
**'^*^      monuments  erected  by  defendants  could  have  been  seen,  and  should  / 
^^  ^^    have  been  seen,  and  in  fact  were  seen.    As  was  said  by  this  court,  j  yi 
under  a  similar  state  of  facts,  in  Newbill  v.  Whitfield,  63  Cal.  81:  /^ 
"At  all  events,  when  the  defendants  went  on  the  ground  on  the  i6th 
and  17th  days  of  July,  1881,  they  found,  or  could  have  found  if  they 
had  looked,  the  monuments — eight  in  number — erected  by  Wallace, 
Parks,  and  Ferrell  on  the  12th  of  April,  with  the  notices  above  indi- 
>jliD<,     cated.  Those  boundaries  included  the  premises  in  controversy.  From 
them  the  defendants  saw,  or  ought  to  have  seen,  that  the  ground  was 
^  Ai<rf   appropriated  by  others,  and  was  not  open  to  location  by  them."   The  i 
jM*«-      order  appealed  from  is  therefore  affirmed.'** 

^  v.«*  "Where  no  other  nionuments  are  referred  to  than  the  claim's  own  corners, 

the  accuracy  of  their  description  may  become  of  especial  importance.  In 
^"^^^  Pollard  V.  Shively,  5  Colo.  309,  it  was  held  that  a  call  for  a  "post"  was  not 
\A  t  answered  by  showing  that   a   "stump"   was   there   and   was   meant.     Contra. 

iy\  Bonanza  Consol.  Min.  Co.  v.  Golden  Head  Min.  Co.,  29  Utah  159,  80  Pac.  736. 

'tj  So  it  has  been  held  that  a  call  for  a  shaft  is  not  met  by  showing  an  adit. 

*Vrf^  Duncan  v.   Eagle  Rock  Gold  Min.  &  Reduction  Co.,  48  Colo.  569,   111   Pac. 

^jj.^^  i    588,  592,  where  White,  J.,  for  the  court  said :     "When  the  location  certificate 
I       -ft    of  a  claim  in  the  vicinity  of  territory  which  a  prospector  desires  to  locate 
ttH't^lM  ^^^'^  ^°'"  ^  particular  monument,  to-wit,  a  shaft,  an  adit,  a  cut,  or  'a  post  four 


MM 


(b)  Amendments  of  Record.  U*^i  Cx  «ju 

TONOPAH  &  SALT  LAKE  MIN.  CO.  v.  TONOPAH  MIN  CO  . '       i     ' 

OF  NEVADA.  *        'Ki&M  f 

1903.     Circuit  Court,  D.  Nevada.  62  C.  C.  A.  685,  129  Fed.  1007.  »us-/^ 

Hawley,  District  JuDGE.^^—This  is  a  suit  or  proceeding  brought  ^==^-<<^-c^ 

under  the  provisions  of  section  2326,  Rev.  St.  [U.  S.  Comp.  St.  1901,     \^^\t^ 

p.  1430],  upon  an  adverse  claim  and  protest  filed  in  the  United  States  ^^ 

land  office  at  Carson,  Nev.,  against  the  application  of  the  defendant  ^^^^ff 

for  a  patent  to  consolidated  claim  No.  2,012,  embracing  eight  mining  *1  ^-^W 

claims,  for  the  purpose  of  determining  which  of  the  parties  has  the  KaA**^ 

better  right  to  the  mining  ground  in  controversy.   The  right  and  in-  (>j»  7/i) 

^^ter-est'of  the  complainant  to  the  land  is  based  upon  a  location  of  a  i 

-^^''^mitiing  claim  situate  in  Tonopah  mining  district,  Nye  county,  Nev.,  U5X<c»-. 

t^     known  and  designated  as  the  "Pyramid" ;  and  the  right  and  interest  bjn£.^-OL 

^        of  the  defendant  to  the  area  in  conflict  is  based  upon  the  location  of  ^LvOa^ 

the  mining  claim  known  and  designated  as  the  "Valley  View."  *  *  *  t-^r\w>.^ 

^  ^        The  eight  claims  in  the  application  for  a  patent  embrace  the  orig-  ^""F^^^ 

■^^       inal  Butler  group  of  mining  claims,  discovered  and  located  by  J.  L.  'A  ^"^  ' 

^^^  Butler,  and  were  the  first  locations  made  in  what  is  now  known  asf^f  ^  Ca 

\3     the  "Tonopah  Mining  District."     *     *     *  U       iU 

^        It  will  be  noticed  that  the  original  location  of  the  Valley  View,  the  y-''^^^'^^ 

^     certificate  of  location,  and  the  additional  and  amended  certificate  of  rt^>V 

J  ^     location  were  long  prior  in  point  of  time  to  the  location  of  the  Pyra-  lawVv5^ 

X)'    mid.  The  right  of  the  original  locators  to  change  their  original  loca-  /rjr>4*^ 

V  /  tion,  so  long  as  such  change  does  not  interfere  with  the  existing  r^V^^ 

rights    of    others    acquired    previous    to    such    change,    is    ungues-^  ^"^^^ 

tioned.     *     *     *  ^x^  Am 

The  statute  of  this  state  approved  March  16,  1897   (Laws  Nev.  Irv -ft^ 

1897,  p*.  103,  c.  89 ;  Comp.  Laws  1900,  §  210),  gives  90  days  after  the  £fiLvi>aa 

date  of  posting  the  location  notice  in  which  to  file  a  certificate  of  lo-.  vLb 

cation,  which  must  be  recorded,  and  provides  what  it  shall  contain  |?'^P 

In  another   section   it  provides   for  the  filing  of  an   additional  or  oy  vt*  <J 

amended  certificate  of  location.  This  section  reads  as  follows : 


If  at  any  time  the  locator  of  any  mining  claim  heretofore  or  hereafter  lo- ^tT*-^-^ 
cated,   or   his   assigns,    shall   apprehend   that   his   original   certificate   was   de-/    ojk  fX^ 


for,  and  to  demand,  the  particular  monument  specified,  and  his  rights  cannot  0\^Ij\a^ 
be  jeopardized  by  proof  of  some  other  monument  not  designated."  ^  i 

But  the  Utah  case  above  cited  and  the  cases  of  Hansen  v.  Fletcher,  10  0'Cfi>s\  ' 
Utah  266,  Zl  Pac.  480,  and  Upton  v.  Larkin,  7  Mont.  449,  17  Pac.  728,  which  J}  »^ 
hold  that  where  a  call  is  for  a  stake  a  tree  can  be  shown,  and  vice  versa,  so  \j  i  " 
long  as  subsequent  prospectors  are  not  actually  misled,  would  seem  to  be  ^  |^  ^^ 
more  in  accord  with  the   spirit  of  the  mining  laws.      ^  .     \)       N  ' 

'       *°  Parts  of  the  opinion  are  omitted.  '  ri  \\^ySL  \  xwif-A/^   'j  ^  " 


-Lx^.-a  fc-v>r\  ,  -•  ^-u^^v  -wv  #-v^A.A.i-'-w»-v-«vj  u4rz^*.---r»'vjiA  <;«»KrP\nc<*-.n-  /'J'^^' 


238  LOCATION    OF    LODE   ANDf  PLACER  CLAIMS.  J 

O  ■--  Z'^*"^  fective,  erroneous,  or  that  the  requirements  of  the  law  had  not  been  complied 

"      it        with  before  filing;  or  shall  be  desirous  of  changing  his  surface  boundaries  or 

'"***  '^"    of  taking  in  any  part  of  an  overlapping  claim  which  has  been  abandoned; 

or  in  case  the  original  certificate  was  made  prior  to  the  passage  of  this  law, 

and  he  shall  be  desirous  of  securing  the  benefits  of  this  act,  such  locator  or 

'Zf  S  <        his  assigns  may  file  an  additional  certificate,  subject  to  the  provisions  of  this 

»  act :  provided,  that  such  relocation  does  not  interfere  with  the  existing  rights 

ic^-'i'^s.    of  others  at  the  time  of  such  relocation,  and  no  such  relocation  or  the  record 

thereof  shall  preclude  the  claimant  or  claimants  from  proving  any  such  titles 

as  he  or  they  may  have  held  under  previous  location.     Cutting's  Comp.  Laws 

1897,  §§  210,  213.  ^  ^  y„^  j^B-A^w-^^  CT 

I        The  courts,  previous  to  the  enactment  of  statiJtes  oitnis^haracter,  ^ 
^^v^/n^  held  that  the  locator,  after  posting  his  notice  of  location,  should  be  ^ 
,  {»    f    ,  allowed  "a  reasonable  time"  within  which  to  perfect  his  location.    i(,ig^ 
Snyder  on  Mines,  §  205,  and  authorities  there  cited ;  Doe  v.  Waterloo  ' 
,         (C.  C.)  55  Fed.  II,  15;  Id.,  70  Fed.  455,  457,  458,  ^7  C  C  A.  190;**^ 
**^*-«n      Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442,  460.   One  of  the  ob- 
ivt^iyj/    jects  of  the  state  statute  was  evidently  to  make  this  time  certain  and 
yxX\k-*9    definite.   The  Legislature  of  this  state,  in  enacting  this  statute,  rec- 
wVjT    ognized  that  difficulties  are  always  liable  to  present  themselves  to  the 
»  enterprising  prospector,  especially  in  districts  where  no  actual  devel- 

fc-*-^^V-ff  Qpi^gnt  has  been  made,  to  determine  with  accuracy  and  precision  the 
■V®'*^^y  course  of  the  ledge  which  he  has  discovered,  its  apex  and  width.  The 
^ ,  f*e.  statute  gives  to  the  locator  of  the  lode  90  days  to  take  such  bearings 
■■Cc\j^y  ^^  ^^  ^^"  *°  &^^^*^^  ^''"'"  ^"  marking  and  defining  his  boundaries,  and 
.1  further  provides  that  if  he  discovers  that  he  has  made  mistakes,  has 
""^  •  '^  taken  up  more  or  less  ground  than  he  is  entitled  to,  or  from  any  cause 
f^hh  '  that  his  location  is  defective  or  erroneous,  he  may  relocate  or  change 
'j(^^_  his  boundaries,  provided  the  same  "does  not  interfere  with  the  exist- 
"^  J"^.  ing  rights  of  others."  It  gives  the  original  locator  the  full  measure 
'^'*'''^**'"  of  the  rights  which  the  mining  laws  permit  him  to  acquire  as  the  re- 
)  %h  **-«*  ward  of  his  energy  in  discovering  the  mineral  lode  or  vein.  It  has 
•1'"  ir*  tl  always  been  the  policy  of  the  government  to  encourage  its  citizens  in 
jy/ .^.searching  for,  discovering,  and  developing  the  mineral  resources  of 
"X  T.'T^  the  country ;  and  this  policy  can  always  be  best  subserved  by  permit- 
"^J        ''»  ting  the  discoverer  to  rectify  and  readjust  his  lines,  whenever  fron^H^'' 

■  V.^*^^    any  cause  he  desires  to  do  so,  provided  he  does  not  interfere  with  o^  ^^ 
t^  H,      impair  "the  intervening  rights  of  others."*^^  There  is  no  statute,  lawi 
«-,    V       rule,  or  regulation,  state  or  national,  which  denies  tjiis  right.    Th/ 

>c<AV^  *''a  "An   owner  may  amend  his   survey    *     *     *    to   correct  diverging  end 

■  i  n  lines.  Doe  v.  Sanger,  83  Cal.  203,  23  Pac.  365.  The  right  so  to  amend  is  un- 
"  "^  deniable,  but  we  apprehend,  where  rights  have  become  vested  in  the  underlie, 
^tkAx^  that  such  amended  end  lines  would  not  divest  such  rights  any  more  than 
a-v,y*vj;^  amended  surface  lines  could  divest  the  rights  of  an  intervening  overlap.  We 
/  Zi«^/^  *^^"  ^^^  "°  difiference  between  an  estate  vested  in  an  extralateral  portionofl 
Af  OC?0  .a  lode  and  an  estate  vested  in  the  surface  of  the  same."— Morrison's  Mining' 


.Wk/R'^hts,  14ed.,202,203.  ^.^  ,     >W      "  >.  Jx     >  ^ 

^/;  HHl  ,  ^y^  f^r^  'vuriOK  U  I  ^  V  T  IV^,    ^^S4' 


■^ 


G 


,  <c^  J 1 9  -  1^ '  ?,i-l- ■     «EcoRD.  <:^  ,,Jt<i^  Pj  ,j.x^    239 _. 

amended  certificate  of  location,  when  made,  becomes  the  completed  ^        » 
location  of  the  discoverer,  and  is  just  as  valid  as  if  it  had  been  made  'ocMVV 
in  the  first  instance.   It  necessarily  follows  that  parties  coming  upon  y^  ^-^ ,  ' 
the  mining  claim  and  ground  described  in  the  amended  certificate  of  ^      ^ 
location,  subsequent  to  the  perfection  of  such  amended  location  in  ^  *'»    '  •  ^ 
compliance  with  the  mining  laws,  can  acquire  no  rights,  because  they  ''7i'pv 
have  not  been  injured,  and  have  no  right  to  complain.  ^j^^r^.^. 

The  amended  certificate  of  location  in  the  present  case  contains  the  «•  -^  »« 
names  of  several  persons,  as  locators,  who  were  shown  by  the  evi-     '\^    • 
dence  to  have  legally  acquired  interests  therein  after  the  original  lo-^*^^-^*!^!*. 
cation  had  been  made,  and  before  the  amended  certificate  was  pre-  l-y  ''£« 
pared  or  filed.   The  rule  is  that,  where  the  second  or  amended  notice  ^,    ,    zv. 
or  certificate  of  location  contains  names  other  than  those  set  forth  in  ^  ''^'^ 
the  original,  it  cannot  be  taken  advantage  of  by  other  parties.   It  may  *^^<-^^-v-UU 
be  treated  as  an  original  notice  as  to  the  persons  whose  names  do  not  f><Nn  0 
appear  on  the  first,  and  as  a  supplemental  or  amended  notice  as  to  ^^^^^^  -^ 
those  whose  names  appear  on  both.  Lind.  on  Mines  (2d  Ed.)  §  398; 
Thompson  v.  Spray,  72  Cal.  528,  529,  14  Pac.  182.  The  law  does  not  Rv*-*^ 
require  that  the  object  or  purpose  of  making  the  amended  certificate  i^Jv^ 
shall  be  specified  therein.  A  general  statement  that  it  is  made  to  cure  ^^ 
errors  or  defects  will  be  sufficient,  the  general  rule  upon  this  subject    \Xm^-: 
being  that  the  filing  of  such  certificate  is  effectual  for  all  the  purposes  'p^,^  j, 
enumerated  in  the  statute,  whether  such  purposes  are  mentioned  in 
the  certificate  or  not.   Lind.  on  Mines  (2d.  Ed.)  §  398;  Johnson  v.^^-A.^>^ 
Young,  18  Colo.  625,  629,  34  Pac.  173.  Jjv^n^"^ 

One  of  the  reasons  testified  to  at  the  trial  was  that  the  origmal  ^^^^  ^^ ' 
north  side  line  of  the  Valley  View  took  in  the  Silver  Top  discovery  1  ^^) 
shaft,  and  also  interfered  with  other  previous  locations.   Another  was     '"*^-^  ■ 
to  straighten  up  the  south  line.     *     *     *    The  location  of  the  Valley  |(^  (<^ 
View  under  the  amended  certificate  of  location  was  and  is  valid,  ^^  rjt:^^. 
against  the  Pyramid  location,  the  owner  of  which  had  not  at  that  time  ^  ^^^ 
acquired  any  right  whatever  to  the  ground  in  controversy.     *     *     *  '  'C^^  0 
The  broad  contention  of  complainant,  as  made  in  all  the  three  cAx^Mju 
cases,  is  that  tTieTocTtorTof  the  Valley  View  must  be  held  to  the  j,^^_^  ^  ^ 
lines  of  its  original  location ;  that  they  acquired  no  new  rights  in  ^^  ^ 
their  amended  location,  because  it  included  ground  not  within  its  W.a./*a 
original  boundaries,  and  they  did  not  make  any  relocation  of  such  l^  criA. 
new  territorv,  and  did  no  annual  assessment  work  thereon,  and  did  ^^  ^^^^ 
not  make  any  discovery  of  mineral  therein,  and  were  never  in  the  j^  j^«|^ 
actual  possession  thereof.    The  law  does  not  require  that  such  things  . 

should  be  done  in  order  to  make  the  claim,  as  described  in  \h&\^^^} 
amended  certificate  of  location,  valid  to  the  full  extent  of  the  bound-  )^„^  U 
aries  therein  described,  as  against  any  subsequent  locator  of  any  ^,j^-^^ji^ 
^rtion  D.i  said-grQund.  If  such  is  not  the-true  intent  and  meaning  ^jj^^^j^ 
oTtEe  state  statute,  it  has  no  meaning,  and  ought  never  to  have  been  ^   .    ^ 


M^\>*-vH-A/i 


\)  L^ 


'^y^^  c?v  0^   *J  t  U-^-a>Uv>''^    »-^>*-fH.     rftv^vJc  t^-Cs^  - 


<~^^-«^^'  ry/>^*^  u.^<.^   ^r-*-^;^-'^-<-<^  fx-a   ^y^rh/Xy  ^ 

p^«  \  >-240        ™-  LOCATION    OF    LODE^AND   PLACER   CLAIMS.  *     /    '^ '^r 

""j /j\  passed.  The  object  of  the  state  statute  has  already  been  fully  dis- 
"  '*7*^^  cussed.  It  was  to  protect,  not  to  deceive,  the  locator.  It  was  to  en- 
j  y>-^t.  ^i^ig  the  miner  to  make  good  the  developments  he  had  made — the  as- 
I  C^  -^O  sessment  work  he  had  done  under  his  original  location — and  at  the 
same  time  include  other  ground  not  embraced  in  his  original  notice 
or  first  certificate  of  location,  so  as  to  make  his  lines  conform  to  the 
directions  which  his  labor,  time,  and  expense  had  indicated  to  him 
as  the  true  course  of  the  lode.  In  making  the  additional  amended^ 
notice,  it  was  not  necessary  for  him  to  take  physical  possession  of  J 
the  additional  ground,  sink  new  shafts,  or  make  any  new  discoveries 
of  mineral. ''^^     *     *     * 

Let  a  decree  be  entered  in  accordance  with  the  views  herein  ex- 
pressed in  favor  of  the  defendant,  and  for  its  costs. 


^  ^-^  ^BERGOUIST  ET  AL.  v.  WEST  VIRGINIA-WYOMING 
^->^  <^'   i  "^  COPPER  CO. 

%  1910.     Supreme  Court  of  Wyoming.     18  Wyo.  234,  106  Pac.  673. 

Action  by  C.  B.  Bergquist  and  another  against  the  West  Vir- 

J' ginia- Wyoming   Copper   Company.     Judgment   for   defendant,   and 

pialntiffs  bring  error.     Judgment  affirmed. 

^^^  Potter,  C.  J.*® — This  is  an  action  for  the  possession  of  certain 

^"^^     mining  ground  situated  in  the  Upper  Platte  and  Battle  Lake  mining 

«*^^       district,  in  Carbon  county  in  this  state,  and  is  brought  in  support  of 

\\KK^     an  adverse  claim  filed  by  the  plaintiffs  upon  the  application  of  the 

K)4.     defendant  for  a  patent  to  certain  claims  embracing  the  ground  in 

I  •  controversv.    Upon  a  trial  in  the  district  court,  without  a  jury,  there 

'Jife''        was  a  general  finding  in  favor  of  the  defendant  and  against  the 

^^iT/      plaintiffs,  and  a  judgment  to  the  effect  that  the  defendant  is  entitled 

wj^^    to  the  possession  of  the  premises  by  virtue  of  a  full  compliance  with 

the  statutes  relating  to  the  discovery  and  location  of  mining  claims. 

^•'^^^^     The  plaintiffs  bring  the  case  here  on  error. 

N-v-e^      The  plaintiffs  claim  under  a  location  of  the  ground  by  them  and 

^j^»(^one  M.  F.  Cannon,  as  the  "Merry  Christmas"  lode  mining  claim,  on 

^^     December  25,  1906,  and  a  deed  by  Cannon  subsequently  conveying 

^^^<  his  interest  to  the  plaintiff  Bergquist.    The  defendant's  claim  to  pos- 

jlfc*  t-rc^  session  is  based  upon  locations  by  its  grantors  of  three  lode  mining 

^,j^_^^_^  claims  named,   respectively,   the   "Modoc,"   "Little   Wonder,"   and 

^-      "Little  Toe."     The  location  of  the  Modoc  and  Little  Wonder  and 
>    C, 

-<.    i-f^       ^'bBut  see,  as  to  placer  claims,  Garden  Gulch   Bar  Placer,   38  Land  Dec. 

t/i*-         Dep.  Int.  28;  Chas.  H.  Head,  40  Land  Dec.  Dep.  Int.  135. 

\^  46  Parts  of  the  opinion  and  all  of  the  concurring  opinion  of  Scott,  J.,  are 

If    C'v  ^  omitted.  ■  j  f  )/!•</ 

V  fic^-^tTX'cW^H  '^'r  V  ^^^  ^  ^  ^H 


RECORD.  241    U,  V>  U 

the  original  location  of  the  Little  Joe  occurred  prior  to  1900;  the  7~T'  ^ 
Modoc,  July  21,  1899,  the  Little  Wonder,  August  17,  1898,  and  ZX'  "" 
the  Little  Joe  (as  originally  located)  September  16,  1897.  The  rec-  Ui*)jtLke 
ord  does  not  disclose  any  adverse  or  conflicting  claims  prior  to  De-  U^J^^ 
cember  25,  1906,  on  which  date  it  is  alleged  that  the  Merry  Christ-  u^  .  ' 
mas  was  located,  though  it  is  claimed  on  the  part  of  the  defendant  \^^^ 
that  a  second  location  of  the  Little  Joe  was  made  on  December  24,  *'^  ^"^ 
1906,  to  protect  the  rights  of  the  owners  of  that  claim  against  any  d^mitut 
attempt  by  others  with  adverse  interests  to  relocate  the  ground.  On  {/^yj  " 
January  9,  1907,  amended  location  certificates  of  the  Modoc,  Little  ^  »■  ^ 
Wonder,  and  original  Little  Joe  were  recorded,  that  of  the  ^lodoc  "Hmb^^  ^ 
and  Little  Joe  being  dated  June  14,  1900,  and  of  the  Little  Wonder^  ,$f  *4 
June  13,  1900;  they  having  been  prepared  in  June,  1900,  to  agree  ^/^  ^^.^ 
with  a  survey  of  the  claims  made  at  that  time.  On  April  12,  1907, 
the  defendant,  to  whom  the  three  claims,  among  others,  had  in  the  ^"^-'^ 
meantime  been  conveyed,  filed  another  amended  location  certificate  i^tflje^ 
for  each  claim.  The  amended  certificates  appear  to  have  been  filed  v^<fli*V 
to  more  definitely  or  correctly  define  the  claim  as  originally  located,^*  1  J-| 
and  not  to  change  the  surface  boundaries.  jTV 

The  conflict  relates  principally  to  the  Merry  Christmas  and  Little  **^^   ^ 
Joe;  it  appearing  that  in  locating  the  former  claim  it 'was  intended  >tct\t'' 
to  cover  substantially  the  ground  included  within  the  latter,  upon  the  \ajc\/  <u. 
supposition  that  the  same  had  been  forfeited  and  was  open  to  reloca-  <;^«^VKjC^*f 
tion.     The  side  lines  of  the  ]\Ierry  Christmas  run  parallel  to  and  e\«_^w 
within  a  few  feet  of  the  corresponding  lines  of  the  Little  Joe,  and 
the  claim  extends  a  short  distance  northeasterly  beyond  the  northeast ^-"^  •  " 
end  line  of  the  Little  Joe  into  the  territory  of  the  Little  Wonder,^    ^2^.^ 
leaving  a  small  strip  across  the  southwest  end  of  the  Little  Joe,  and   ^   >  . 


\K^^ 


a  narrow  strip  along  and,  as  we  understand,  within  each  of  its  side' 
lines,  untouched  by  the  boundaries  of  the  Merry  Christmas  location. 
With  this  explanation  it  will  be  sufficient,  as  showing  the  relative  cWv« 
positions  of  the  several  claims  mentioned,  to  refer  to  the  map  pub-  f\jj^  ^t^ 
lished  with  the  opinion  of  this  court  in  the  case  of  Slothower  ^-^vh^cj 
Hunter  et  al.,  15  Wyo.  189,  195,  88  Pac.  36.*'  ^V 

From  the  evidence  it  appears  that  the  original  discovery  upon  the   I^^S*^ 

Little  Joe  was  made  at  the  time  of  its  location  in  1897.  That  claim,  vvi.-*'^^ 

with     the  Little  Wonder  and  others,  was  involved  in  the  case  of  ^-^  /^ 

Slothower  v.  Hunter  et  al.,  supra,  w^herein  this  court  held  that  the        1^ 

.  original  recorded  certificate  of  location  of  the  Little  Joe  was  void,  hr^iQ^ 

j£  j  in  that  it  failed  to  give  the  length  of  the  claim  along  the  vein  each  -yf^^j^^ 

I  way,  measured  from  the  center  of  the  discovery  shaft,  as  required  by 

I  the  statute  of  this  state.     Thereupon  the  attorney  representing  the  '^  ^^"^ 

opposing  interests  advised  or  suggested  the  location  of  the  ground  Lii  i^\A 

by  the  plaintiffs,  upon  the  theory  that  the  decision  in  the  case  afore-^y.  ^^^^^^^^ 

said  in  efifect  annulled  all  rights  under  the  Little  Joe  location,  ^^^^"T^*  ^ 

*'  The  map  from  Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36,  is  as  follows:    ^^    <. 
16— Mining  Law    >tu^  j  ,    .  ^   ^  ^  .  -  Vl^     C*^  •  /Xm^   ^ji^\    f  * 


^Pw- 


242 


LOCATION  OF  LODE  AND  PLACER  CLAIMS. 


ii-^ 


x^  U^^^^^i^Ur.   --  K-^^*^>KU.  UZ.O-K^  .^.-^  ^^  "^^^ 


RECORD.  243 

ing  the  ground  unappropriated.  A.  M.  Woodruff  and  F.  E. 
Hunter,  the  latter  being  an  original  locator  of  the  Little  Joe,  having 
learned  of  the  decision  in  the  Slothower  Case,  and  that  others  were 
proposing  to  locate  the  ground,  at  once  took  steps  to  protect  the 
Little  Joe  location,  and  to  that  end,  on  December  24,  1906,  Woodruff 
prepared  as  of  that  date  a  notice  of  location  of  the  Little  Joe  claim, 
to  be  posted  in  his  name,  and  gave  it  to  Hunter  for  that  purpose. 
Hunter  also  signed  the  notice,  and  immediately  went  to  the  claim, 
reaching  the  same  during  the  night,  and  thereupon,  early  in  the 
morning  of  December  25th,  placed  the  notice  in  the  ridge  log  of 
the  Little  Joe  shafthouse,  and  wrote  another  similar  notice  on  a  slab, 
signing  his  own  name  and  Woodruff's  as  locators,  and  placed  it  on 
top  of  the  shaft.  Woodruff  was  one  of  the  locators  of  the  IModoc  and 
the  Little  Wonder  claims  adjacent  to  the  Little  Joe,  and  Hunter  was 
also  one  of  the  locators  of  those  claims.  About  11  o'clock  in  the 
forenoon,  after  Hunter  had  posted  his  notices  as  foresaid,  the  plain- 
tiff Cothern  and  M.  F.  Cannon  arrived  upon  the  ground,  and  posted 
inside  the  shafthouse  of  the  original  Little  Joe  claim  a  notice  of  the 
location  of  the  Merry  Christmas  lode,  the  names  of  the  plaintiffs 
Bergquist  and  Cothern  and  M.  F.  Cannon  being  signed  as  locators; 
the  said  notice  being  posted  on  a  slab  tacked  upon  one  of  the  logs 
of  the  shafthouse  above  the  ground.  Cothern  and  Cannon  testified 
that  when  they  arrived  at  the  claim,  they  noticed  tracks  in  the  snow, 
and  thereby  understood  that  some  one  had  recently  been  there,  and 
that  they  then  saw  and  read  the  notice  of  Woodruff  and  Hunter  upon 
the  slab. 

Considerable  work  had  been  done  upon  the  original  Little  Joe, 
the  shaft  having  been  sunk  to  a  depth  of  50  or  60  feet,  and  the  evi- 
dence shows  that  the  claim  had  never  been  voluntarily  abandoned. 
Hunter  was  one  of  the  original  discoverers  and  locators,  and  he  and 
Woodruff  did  the  work  of  sinking  the  shaft,  and  each  knew,  at  the 
time  of  posting  their  notice,  of  the  existence  on  the  claim,  and  at  the 
point  where  the  notice  was  posted,  of  mineral-bearing  rock  in  place. 
Woodruff  was  on  the  claim  on  December  26  or  27,  1906,  and  early 
in  January,  1907,  he  caused  a  shaft  to  be  sunk  for  the  new 
Little  Joe  location,  at  a  point  about  60  feet  easterly  from  the  old 
shaft,  and  it  was  completed  to  the  requisite  depth  of  10  feet  on 
January  6,  1907,  disclosing  mineral-bearing  rock  in  place.  On  Jan- 
uary 29,  1907,  a  location  certificate  of  the  new  Little  Joe  location 
signed  by  Woodruff  was  recorded. 

After  the  completion  of  the  new  Little  Joe  shaft,  and  probably  on 
the  following  day,  Cothern  commenced  the  digging  of  a  shaft  for 
the  Merry  Christmas  about  fifty  feet  easterly  from  the  old  Little 
Joe  shaft,  and  completed  the  same  to  the  requisite  depth  disclosing 
mineral-bearing  rock  in  place,  about  February  i,  1907.  Thereafter, 
and  before  the  expiration  of  60  days  from  the  date  of  posting  the 
Merry  Christmas  notice,    the  locators  thereof  caused  the  boundaries 


244  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

to  be  surveyed,  and  an  attempt  was  made  to  mark  the  boundaries 
by  stakes,  but  the  stakes  were  all  driven  in  snow,  and  it  seems  that 
some  of  them  were  not  'driven  through  the  snow  into  the  ground. 
On  February  21,  1907,  the  locators  of  the  Merry  Christmas  lode 
recorded  a  location  certificate  dated  February  18,  1907,  giving  the 
date  of  location  as  February  14,  1907. 

On  January  29,  1907,  all  the  locators  of  the  Modoc,  Little  Wonder, 
and  Little  Joe,  including  A.  M.  Woodruff,  joined  in  a  deed  conveying 
said  claims,  with  others,  to  the  Witz  Investment  Company,  a  corpora- 
tion ;  and  on  February  2,  1907,  the  Witz  Investment  Company  con- 
veyed the  same  mining  claims  to  the  defendant  herein.  The  deputy 
mineral  surveyor,  who  made  the  survey  of  said  three  claims  in  June, 
1900,  and  prepared  the  amended  certificates  of  that  year,  and  who 
also  surveyed  for  the  plaintiffs  the  Merry  Christmas  lode  as  located, 
and  made  the  map  introduced  in  evidence  by  the  plaintiffs  to  show 
the  situation  of  the  respective  claims,  testified  that  when  he  made  the 
survey  in  1900  the  boundary  stakes  and  monuments  of  the  three 
claims  of  the  defendant  aforesaid  were  all  in  place,  and  there  is  noth- 
ing in  the  record  to  show  or  indicate  that  any  of  them  were  after- 
wards removed  or  displaced. 

I.  It  is  maintained  on  behalf  of  the  defendant  that  proof  of  the 
validity  of  either  location  of  the  Little  Joe  is  sufficient  to  sustain  its 
right  to  that  claim,  since  all  the  locators  under  the  respective  locations 
joined  in  the  deed  to  defendant's  grantor.    *    *    * 

The  contention  that  the  deed  from  Hunter,  Woodruff,  and  others 
to  the  Witz  Investment  Company  conveys  only  the  rights  of  the 
grantors  under  the  original  location  of  the  Little  Joe  is  not  sustained 
by  a  proper  construction  of  that  instrument  or  the  facts  of  the  trans- 
fer. It  is  a  warranty  deed,  containing  covenants  of  seisin  and  right 
to  convey,  against  incumbrances,  of  quiet  enjoyment  and  of  war- 
ranty, "excepting  the  provisions,  reservations,  and  limitations  con- 
tained in  the  patent  of  the  LTnited  States  to  be  issued  for  said  sur- 
vey lots,"  referring,  no  doubt,  by  the  use  of  the  words  "survey  lots" 
to  the  ground  embraced  in  the  claims  as  finally  surveyed.  The 
premises  conveyed  are  described  as  certain  adjacent  lode  mining 
claims,  the  same  being  named  and  including  the  "Little  Joe,"  as  the 
same  are  recorded  in  the  records  of  Carbon  county  in  certain  books 
and  at  certain  pages  specified  in  the  deed.  And  it  seems  to  be  sup- 
posed that  because  the  records  referred  to,  so  far  as  the  Little  Joe 
is  concerned,  cover  only  the  certificate  or  certificates  of  the  original 
location  of  the  claim,  no  right  was  acquired  throught  the  deed  un- 
der the  second  location.  But  it  is  clear  that  the  reference  to  the 
recorded  certificates  was  for  the  purpose  of  identifying  the  bound- 
aries and  situation  of  the  respective  claims,  and  not  the  designation 
of  a  particular  location  under  which  the  mineral  land  had  been 
appropriated.  As  the  boundaries  of  the  Little  Joe  under  each  loca- 
tion are  exactly  the  same,  as  shown  by  the  location  certificates,  the 


RECORD.  245 

description  fits  the  claim  under  either  location.  The  grantee  was 
given  possession  of  the  claim  and  the  territory  covered  by  iL,  and  it 
was  clearly  intended  to  convey  all  the  interest  of  the  grantors  in 
the  claim,  however  and  when  ever  located. 

The  Modoc,  Little  Wonder,  Little  Joe.  and  other  adjoining  claims 
are  mentioned  in  the  evidence  as  constituting  a  group  of  claims 
benefited  by  development  work  done  in  common,  and,  inferentially 
at  least,  it  appears  that  the  respective  locators,  if  not  jointly  inter- 
ested in  each  claim,  had  a  common  interest  of  some  character  in 
maintaining  and  preserving  the  several  claims.  If  the  new  location 
of  the  Little  Joe  should  be  found  invalid  for  any  reason,  the  attempt 
thereby  to  relocate  would  not  constitute  an  abandonment  or  for- 
feiture of  the  former  location,  even  though  attempted  in  the  interest 
of  the  original  locators.  Weill  v.  Lucerne  Min.  Co.,  11  Nev.  200; 
Temescal,  etc.,  Co.  v.  Salcido,  137  Cal.  211,  69  Pac.  loio.  The  title 
of  the  locators  under  either  location  passed  by  conveyance  to  the  de- 
fendant, and  it  is  therefore  not  material  as  against  the  plaintiffs 
whether  the  proper  source  of  the  defendant's  title  is  to  be  found  in 
the  original  or  new  location,  provided  either  is  good,  entitling  the 
defendant  to  possession.    *    *    * 

3.  Without  reciting  in  detail  the  evidence  relating  to  the  original 
location  of  the  Little  Joe,  we  deem  it  sufficient  to  say  that  it  shows 
a  valid  discovery  upon  the  claim  in  1897,  the  sinking  of  discovery 
shaft  immediately  thereafter,  the  staking  of  the  boundaries,  and  the 
performance  each  year  of  the  annual  labor  and  development  work 
required  by  law.  That  an  original  location  certificate  was  recorded 
and  within  the  period  required  by  law,  or  at  least  long  prior  to  any 
attempt  by  others  to  relocate  the  ground,  is  to  be  regarded  as  con- 
ceded for  the  reasons  previously  stated.  The  amended  certificate, 
so  called,  was  dated,  as  aforesaid,  June  14,  1900.  recorded  January 
9,  1907,  and  signed  by  F.  E.  Hunter,  R.  F.  Jones,  and  H.  L.  Kuyden- 
dall,  presumably  the  original  locators,  or,  at  any  rate,  the  then 
owners.  It  states  that  the  claim  described  is  the  same  that  was  orig- 
inally located  September  16,  1897,  and  that  the  amendment  is  made 
"without  waiver  of  any  previously  acquired  rights,  but  forthe  pur- 
pose of  correcting  any  errors  in  the  original  location,  description,  or 
record."  At  the  dme  it  was  recorded,  all  that  had  been  done  toward 
the  location  of  the  Merry  Christmas  was  the  posting  of  notice,  and 
the  commencement  of  wo'rk  upon  a  discovery  shaft.  The  shaft,  how- 
ever, was  not  completed  until  about  February  i,  1907.  The  statute 
provides  that :  "Whenever  it  shall  be  apprehended  by  the  locator,  or 
his  assigns,  *  *  *  that  his  or  their  original  location  certificate  was 
defective,  erroneous,  or  that  the  requirements  of  the  law  had  not  been 
complied  with  before  the  filing  thereof,  or  shall  be  desirous  of  chang- 
ing the  surface  boundaries  of  his  or  their  original  claim  or  location 
or  Of  taking  in  any  part  of  an  overlapping  claim  or  location  which 
has  been  abandoned,    *    *    *    such  locator  or  locators,  or  his  or  their 


246  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

assigns  may  file  an  additional  location  certificate  in  compliance  with 
and  subject  to  the  provisions  of  this  chapter:  Provided,  however, 
that  such  relocation  shall  not  infringe  upon  the  rights  of  others  ex- 
isting at  the  time  of  such  relocation,  and  that  no  such  relocation,  or 
other  record  thereof,  shall  preclude  the  claimant  from  proving  any 
such  title  or  titles  as  he  or  they  may  have  held  under  any  previous 
location."    Rev.  St.  1899,  §  2538. 

The  same  statute  exists  in  Colorado,  and  it  has  been  held  in 
that  state  that  the  section  corresponding  with  our  section  2547,  to  the 
effect  that  a  certificate  is  void  which  does  not  fully  contain  all  the 
requirements  of  section  2546,  together  with  such  other  description 
as  shall  identify  the  lode  or  claim  with  reasonable  certainty,  is  to  be 
construed  with  the  section  providing  for  the  recording  of  additional 
certificates,  whereby  the  imperfect  certificate  is  not  to  be  held  abso- 
lutely void,  since  it  is  made  capable  of  amendment,  whereas  "a  void 
thing  is  null,  and  not  subject  to  amendment,"  and  that  when  amended 
the  amendment  takes  effect  with  the  original  as  of  the  date  of  the 
latter.  McEvoy  v.  Hyman  (C.  C.)  25  Fed.  596;  Fisholm  v.  Fitz-lf[^ 
gerald,  25  Colo.  290,  53  Pac.  1109.  In  the  case  last  cited  Mr.  Justice|f 
Goddard  took  the  view  that  the  proviso  in  relation  to  existing  rights 
at  the  time  of  the  recording  of  the  additional  certificate  had  reference 
only  to  a  change  of  boundaries  and  a  relocation  that  should  take  in 
territory  not  before  included  in  the  claim,  and  not  to  amendments 
made  for  other  purposes,  such  as  to  cure  defects  in  description.  The 
other  justices  expressed  no  opinion  upon  the  construction  of  the 
statute,  but  concurred  in  the  decision  on  other  grounds  deemed  sufB- 
cient  to  dispose  of  the  case.  There  is  much  reason  we  think  for  the 
construction  given  the  statute  by  Judge  Goddard.*^  In  Idaho,  where 
there  is  a  similar  statute,  the  court  agrees  with  Judge  Goddard's 
construction.  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  955.  And 
Lindley  seems  to  accept  that  as  the  rule.  He  says :  "A  reasonable 
latitude  of  amendment  is  allowed,  of  which  the  locator  cannot  be 
deprived  because  some  one  has  attempted  to  relocate  the  ground. 
There  is  a  distinction  between  amending  an  original  location  by  re- 
forming lines  and  rectifying  errors  based  upon  a  prior  discovery  and 
location,  and  the  relocation  of  abandoned  ground."    Section  398. 

In  a  recent  Colorado  case  it  was  held  that,  where  the  location 
certificate  of  a  senior  location  had  not  been  filed  within  the  statutory 


% 


*' "But  in  Frisholm  v.  Fitzgerald,  25  Colo.  290,  53  Pac.  1109,  where  a  record  I 
contained  no  reference  at  all  to  a  natural  object  or  permanent  monument  1 
and  was  not  only  constructively  void  for  non-compliance  with  the  Congres-/ 
sional  act,  but  was  declared  void  in  terms  by  the  Colorado  statute,  the  relo- 
cation [by  amended  record]  was  held  to  relate  back  to  the  original  record  and 
to  cut  out  an  intervening  title.  The  opinion  in  the  case  is  peculiar  in  this, 
that  it  is  the  personal  view  of  one  judge,  and  both  of  his  associates  refused 
to  concur.  *  *  *  We  consider  untenable  the  proposition  that  any  amend- 
ment can  cure  a  void  record  as  against  an  intervening  location."— Morrison's  I  ( 
Mining  Rights,  14  ed.,  156. 


^ 


RECORD.  247 

period,  but  its  filing  preceded  the  filing  of  the  certificate  of  a  junior 
conflicting  location,  though  after  the  performance  of  some  of  the 
statutory  acts  of  locating  the  junior  claim,  the  senior  claim  became 
the  prior  location.  The  court  say  that  the  court  should  have  told 
the  jury  as  a  matter  of  law  "that  the  filing  of  the  location  certificate 
of  the  Evening  Star,  though  not  within  the  statutory  time,  yet  in 
advance  of  the  filing  of  that  of  the  Little  Jonnie,  so  far  as  that  par- 
ticular step  in  locating  a  mining  claim  is  concerned,  constitutes  the 
Evening  Star  a  prior  location."  Washington  Gold  Min.  &  Mill.  Co. 
V.  O'Laughlin  (Colo.)  105  Pac.  1092.  That  rule  can,  we  believe,  be 
correctly  applied  here,  thereby  confirming  the  priority  of  the  original 
location  of  the  Little  Joe,  through  the  filing  of  the  amended  certifi- 
cate five  weeks  or  more  before  the  filing  of  the  certificate  of  the 
Merry  Christmas,  with  title  thereunder  vested  in  defendant ;  its  im- 
mediate grantor  having  acquired  and  conveyed  to  it  all  the  right  to 
the  ground  under  either  location  of  the  Little  Joe.  But  we  are  not 
disposed  to  rest  our  determination  of  the  case  altogether  upon  this 
proposition ;  for  if  we  are  wrong  concerning  it,  then  without  ref- 
erence to  it  a  consideration  of  the  other  facts  in  the  case  must  clearly 
demonstrate,  we  think,  either  that  no  rights  were  at  any  time  ac- 
quired by  the  location  under  which  plaintififs  claim,  or  that  whatever 
inchoate  rights  were  acquired  were  completely  lost  through  the  sec- 
ond location  of  the  Little  Joe  claim.  We,  therefore,  proceed  to  con- 
sider the  other  questions  in  the  case  which  were  chiefly  discussed  by 
counsel,  assuming  in  doing  so  that  the  ground  of  the  Little  Joe  was 
open  to  relocation  by  reason  of  the  stated  defect  in  the  original 
location  certificate. 

4.  By  reason  of  the  prior  posting  of  its  location  notice  the  second 
location  of  the  Little  Joe  constituted  a  prior  appropriation  of  the 
ground  embraced  wnthin  its  boundaries,  as  against  the  plaintififs,  if 
the  notice  was  sufficient,  and  the  location  was  perfected,  or  sufficient 
locatibn  acts  were  performed  to  cut  off  any  rights  under  the  junior 
location.  The  fact  that  Hunter  was  one  of  the  original  discoverers 
and  locators  of  the  lode,  and  that  he  and  Woodruflf  had  done  the 
work  of  sinking  the  shaft  on  the  former  claim,  and  each  knew  of  the 
existence  of  mineral-bearing  rock  in  place  in  that  shaft,  and  at  the 
point  where  the  notice  wasposted,  sufficiently  shows  a  discovery  to 
support  the  new  location  at  the  time  of  posting  the  notice,  if  the 
ground  was  open  to  relocation.  It  is,  however,  contended  in  the  first 
place  that  the  location  notice  was  insufficient. 

The  only  notice  required  by  our  statute  to  be  posted  on  the  claim, 
or  by  any  district  rule,  so  far  as  this  record  discloses,  is  that  provided 
for  in  section  2548,  Rev.  St.  1899,  which  prescribes  that,  before  the 
filing  of  the  location  certificate,  the  discoverer  shall  designate  the 
location,  by,  among  other  things,  "posting  at  the  point  of  discovery, 
on  the  surface,  a  plain  sign  or  notice,  containing  the  name  of  the  lode 
or  claim,  the  name  of  the  discoverer  and  locator,  and  the  date  of  such 


248  LOCATION    OF    LODE    AND    PLACER    CLAIMS. 

discovery."  Section  2546  requires  the  discoverer,  within  60  days 
from  the  date  of  discovery,  to  "cause  such  claim  to  be  recorded 
*  *  *  by  a  location  certificate"  containing  certain  facts.  The 
posted  notice  provided  for  in  section  2548  is  for  the  purpose,  as 
stated  in  the  section,  of  designating-  the  location  of  the  lode,  vein,  or 
fissure  discovered.  The  notice  has  no  relation  to  the  location  cer- 
tificate, except  that  it  is  to  be  posted  before  the  filing  of  the  latter. 
As  observed  in  Lindley  on  Mines  (2d  Ed.)  §  355,  the  requirement 
of  our  statute  as  to  posting  notice  is  a  perpetuation  of  the  custom  that 
prevailed,  in  the  early  mining  history  of  the  West,  of  posting  a  notice 
at  some  point  on,  or  in  close  proximity  to,  the  discovery  lode  as  the 
first  step  in  appropriating  the  same,  the  purpose  of  which  was  to 
show  the  discoverer's  intention  to  claim  the  vein  to  the  extent  de- 
scribed, and  to  warn  others  that  it  had  been  appropriated.  In  view 
of  the  object  of  the  notice,  as  well  under  the  statute  as  by  the  early 
custom,  it  is  the  universal  rule,  where  neither  the  notice  nor  a  copy 
of  it  is  required  to  be  recorded,  that  it  is  to  be  liberally  construed, 
and  its  sufficiency,  at  least  to  accomplish  the  purpose  intended,  is  a 
question  of  fact. 

There  were  two  notices  left  upon  the  claim  to  designate  the  second 
Little  Joe  location.  One  was  written  on  paper  by  Woodruft",  signed 
by  Hunter  and  himself  as  locators,  witnessed  by  one  Newman,  and 
was  entitled  "Location  Notice."  It  was  placed  by  Hunter  in  the 
ridge  log  in  the  shafthouse,  and  an  additional  notice  was  written 
by  Hunter  upon  a  slab  and  placed  where  it  could  more  readily  be 
seen.  The  contents  of  the  first  notice,  omitting  the  hearing  and  sig- 
natures, were  as  follows:  "I,  the  undersigned  have  this  24th  day  of 
December,  1906  located  and  claimed  1500  feet  on  this  lead  lode  or 
mineral  deposit  running  400  feet  in  an  easterly  direction  and  iioo 
feet  in  a  westerly  direction  from  this  location  notice ;  also  300  feet  on 
each  side  of  this  location.  Said  claim  shall  be  known  as  the  'Little 
Joe.'  "  The  notice  on  the  slab,  as  copied  by  McCoy,  the  surveyor, 
on  February  14,  1907,  when  he  went  to  the  claim  to  survey  the  Merry 
Christmas,  was  as  follows:  "Notice.  We,  the  undersigned,  did  this 
24th  day  of  Dec.  locate  1500  feet  of  the  lead  vein  or  mineral  as  fol- 
lows:  400  feet  in  an  easterly  direction  and  iioo  feet  in  a  westerly 
direction  from  the  discovery  with  300  feet  on  each  side  of  this  loca- 
tion notice.  This  shall  be  known  as  the  Little  Joe."  It  was  signed 
in  the  names  of  A.  M.  Woodruff  and  F.  E.  Hunter  as  locators,  and 
by  C.  F.  Newman  as  witness. 

Two  principal  objections  are  urged  against  the  sufficiency  of  these 
notices.  First,  that  the  date  on  the  slab  notice  did  not  mention  the 
year;  and,  second,  that  the  name  of  the  discoverer  is  not  stated  in 
either  notice,  the  names  of  Woodruff  and  Hunter  being  signed  only 
as  locators,  and  there  being  no  recital  in  the  notice  to  designate  them 
as  discoverers.  There  is  some  conflict  in  the  evidence  as  to  whether 
the  notice  on  the  slab  mentioned  the  year.     Hunter  states  positively 


RECORD.  249 

that  it  was  inserted  in  the  notice.  McCoy  and  other  witnesses  pro- 
duced by  the  plaintiff  testified  that  they  saw  the  notice,  and  failed 
to  find  any  mention  of  the  year  in  the  date.  At  least  one  of  such 
witnesses  admitted  that  it  might  have  been  there,  and  not  easily  ob- 
served because  of  the  fact  that  the  notice  was  written  with  a  pencil 
on  a  rough  slab.  Whether  under  the  general  finding  it  might  be 
considered  that  the  court  passed  upon  the  conflicting  evidence  in 
favor  of  the  defendant,  or  that  the  preponderance  is  so  strongly 
against  the  defendant  on  the  point  as  to  render  such  a  finding  im- 
probable or  unsustained  by  the  weight  of  the  evidence,  we  think  not 
very  material.  The  notice  written  on  paper,  and  placed  in  the  ridge 
log,  contained  the  complete  date,  and  in  that  respect  was  sufficient. 
Further,  the  evidence  renders  it  clear  that  the  locators  of  the  INIerry 
Christmas  were  not  misled  as  to  the  date  of  the  notice,  or  the  time 
when  it  was  posted. 

Under  the  circumstances  the  two  notices  should  be  considered 
together.  The  paper  notice,  as  shown  by  the  evidence,  was  stuck  in 
the  ridge  log  of  the  shafthouse  to  prevent  its  being  torn  by  the  wind. 
That  log,  it  appears,  was  situated  directly  over  the  shaft,  and  only 
a  few  feet  above  the  top  of  it,  and  the  conclusion  to  be  fairly  reached 
upon  the  evidence  is  that  the  notice  was  not  so  concealed  as  to  escape 
observation  upon  reasonable  search.  Although  Cothern  and  Cannon 
testify  that  they  did  not  see  that  notice  on  December  25th,  McCoy 
testifies  that  he  saw  it  stuck  in  the  ridge  pole  of  the  shafthouse  from 
a  point  50  feet  distant,  where  he  was  setting  up  his  transit,  when  he 
went  to  the  claim  in  February  to  survey  the  boundaries  of  the  Merry 
Christmas,  and  called  Cothern's  attention  to  it,  and  read  and  copied 
it.  Lindley  states  the  rule  to  be  that,  in  the  absence  of  any  specific 
direction  in  the  statute  or  district  regulation  prescribing  the  manner 
of  posting,  any  device  adopted  will  be  sufficient  which  would  enable 
one  seeking  information  in  good  faith  to  discover  the  existence  of 
the  notice,  i  Lindley  on  Mines  (2d  Ed.)  §  356.  In  view  of  the 
situation  we  think  that,  had  the  paper  notice  been  the  only  one,  it 
was  sufficiently  posted. 

It  is  unnecessary  to  determine  whether  the  statute,  in  requiring  the 
notice  to  be  posted  at  the  point  of  discovery,  refers  to  the  point 
where  the  lode  is  first  discovered  by  the  locator,  or  where  the  dis- 
covery shaft  is  sunk,  in  case  the  situation  of  the  original  discovery 
and  discovery  shaft  are  not  identical,  or  whether  either  will  answer 
the  purpose  of  the  statute.  The  location  notice  of  both  the  second 
Little  Joe  and  Merry  Christmas  were  posted  at  the  same  place,  while 
the  discovery  shaft  of  each  claim  was  sunk  a  short  distance  therefrom 
—in  the  case  of  the  Little  Joe  about  60  feet,  and  of  the  jNIerry 
Christmas  about  50  feet.  Therefore,  if  a  proper  construction  of 
the  statute,  a  question  which  we  do  not  decide,  would  require  the 
location  notice  to  be  posted  at  the  discovery  shaft  as  distinguished 
from  the  point  where  the  lode  was  first  discovered  upon  the  claim. 


250  LOCATION    OF    LODE   AND    PLACER   CLAIMS. 

there  would  be  the  same  irregularity  in  both  the  Little  Joe  and  Merry 
Christmas  location,  which,  if  sufficient  to  invalidate  either  claim, 
would  invalidate  both,  whereupon  it  would  follow  that  the  amended 
certificate  of  location  of  the  original  Little  Joe  would  take  effect  as 
recorded  before  the  existence  of  the  intervening  rights,  thereby  cur- 
ing the  only  defect  suggested  by  this  record  as  to  that  location. 

Were  both  notices  insufficient  on  the  ground  that  they  omitted 
the  name  of  the  discoverer?  Counsel  for  the  plaintiffs  seems  to  un- 
derstand the  statute  to  indicate  that  the  discoverer  and  locator  may 
be  different  persons.  We  do  not  think  the  statute  is  to  be  so  con- 
strued. In  section  2546  the  "discoverer"  is  required  to  record  a  loca- 
tion certificate.  In  the  section  providing  for  and  prescribing  the 
contents  of  the  notice  (section  2548)  the  "discoverer"  is  required 
to  designate  the  location  by  posting  the  notice  and  performing  the 
other  specified  acts.  In  the  section  prescribing  the  procedure  for 
locating  placer  claims  (section  2553,  as  amended,  Laws  1901,  c.  100) 
the  same  provisions  appear ;  but,  as  to  such  claims,  it  is  provided  that 
the  notice  shall  state,  in  addition  to  the  name  of  the  claim,  date  of 
discovery,  and  number  of  acres  claimed,  only  the  "name  of  the 
locator  or  locators."  Again  in  section  2550  it  is  provided  that  the 
"discoverer"  of  any  mineral  lode  or  vein  shall  have  the  period  of  60 
days  from  date  of  discovery  in  which  to  sink  a  discovery  shaft 
thereon.  Where  a  discovery  is  made  by  a  prospector  acting  for 
himself  and  others,  or  in  the  exclusive  interest  of  others,  his  discov- 
ery operates  to  their  benefit  for  the  purpose  of  a  location,  and,  with- 
in the  meaning  of  the  statute,  they  are  discoverers  entitling  a  location 
to  be  made  in  their  name.  Since  the  statute  throughout  suggests  that 
a  location  may  be  made  only  by  the  discoverer,  and,  in  the  section 
aforesaid  providing  for  posting  notice  requires  that  the  "discoverer" 
shall  designate  the  location  by  posting  a  notice  containing  the  "name" 
of  the  "discoverer  and  locator,"  we  think  that  clearly  the  words  "dis- 
coverer and  locator,"  as  there  used,  refer  to  the  same  person,  and 
the  person  signing  the  notice  of  location  is  to  be  understood  as  claim- 
ing discovery,  and  to  be  both  discoverer  and  locator.  Any  other  con- 
struction would  not  only  be  extremely  technical,  but,  as  occurs  to  us, 
without  any  good  reason  to  support  it.  The  notice  itself  is  not  evi- 
dence of  a  discovery ;  that  fact  must  be  otherwise  shown.  It  is  to  be 
observed  that  the  notice  on  the  slab  stated  the  length  claimed  in  each 
direction  from  "discovery,"  thus  indicating  a  claim  of  previous  dis- 
covery. 

The  fact  that  the  notice  may  in  fact  have  been  posted  after  mid- 
night of  the  date  it  bears  does  not  invalidate  it,  no  fraud  or  fraudu- 
lent intent  appearing,  and  the  notice  having  been  posted  before  the 
initiation  of  the  conflicting  or  adverse  claim.  Nor  is  there  any  force 
in  the  objection  that  the  date  of  discovery  is  not  stated,  for,  under 
the  rule  of  liberal  construction,  the  statement  that  on  the  date  men- 
tioned the  locators  located  and  claimed  the  lode  to  the  extent  de- 


RECORD.  25 1 

scribed  is  to  be  taken  and  understood  as  the  date  of  discovery,  withLn 
the  meaning  of  the  statute,  and  as  inserted  to  compl}'  with  the  statute 
in  that  particular ;  the  statement  of  no  other  date  being  required.  A 
notice  under  a  similar  statute  in  Colorado  was  held  sufficient  which 
merely  stated  that  "the  undersigned  claim  1,500  feet  on  this  mineral- 
bearing  lode,  vein  or  deposit,"  and  was  dated  and  signed  without 
specifically  designating  the  persons  signing  as  either  locators  or  dis- 
coverers. Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed. 
1113. 

5.  It  is  contended  that  the  boundaries  of  the  Little  Joe  under  the 
second  location  were  not  marked  as  required  by  the  statute.  The 
evidence  does  not  indeed  show  a  new  or  independent  marking  of 
the  boundaries  of  that  location,  but  it  does  show  by  the  location  cer- 
tificate that  the  old  boundaries  as  staked,  marked,  identified,  and 
surveyed  were  adopted,  for  that  certificate  conforms  exactly  in  its 
description  by  metes  and  bounds  to  that  of  the  amended  certificate 
of  the  original  Little  Joe,  which  was  prepared  in  1900  according  to 
the  survey  then  made,  and  refers  to  and  describes  the  same  corner 
and  side  center  stakes.  The  evidence  is  clear  that  in  locating  the 
second  claim  it  was  intended  to  cover  the  exact  ground  embraced  in 
the  former  location,  and  there  is  no  evidence  that  any  of  the  bound- 
ary posts  or  monuments  had  been  destroyed  or  removed. 

Upon  the  authorities  the  adoption  of  the  old  boundaries  and 
boundary  stakes  or  markings  was  permissible.  Brockbank  v.  Albion 
Min.  Co.,  29  Utah,  367,  81  Pac.  863 ;  Conway  v.  Hart,  129  Cal.  480, 
62  Pac.  44.    *    *    * 

If  the  location  is  in  fact  marked  in  the  manner  provided,  it  does 
not  occur  to  us  as  important  whether  the  marking  has  been  ac- 
complished through  the  process  of  erecting  new  stakes  or  monu- 
ments, or  by  adopting  and  using  those,  if  any,  already  at  the  proper 
place:>,  and  conforming  to  the  statutory  specification. 

The  [state]  statute,  it  is  true,  contains  an  express  permission  to 
adopt  old  boundaries  only  in  case  of  the  relocation  of  an  abandoned 
claim.  Rev.  Stat.  1899,  §  2552.  That  provision,  however,  is  not 
found  in  the  section  which  directs  that  the  boundaries  be  marked  in 
a  particular  manner,  nor  in  a  section  specially  regulating  that  sub- 
ject, but  in  a  separate  section  permitting  and  providing  for  the  relo- 
cation of  abandoned  claims,  and  is  not  to  be  construed  as  excluding 
the  right  in  every  other  case  to  adopt  old  boundaries  and  boundary 
stakes.  It  declares  a  rule  even  as  to  abandoned  claims  which  would 
exist  independent  of  statute.  There  was  no  such  permissive  statute 
in  California  or  Utah  where  adoption  of  old  boundary  stakes  was 
held  competent.  We  are  unable  to  observe  any  distinction  upon  prin- 
ciple in  this  respect,  whether  the  ground  is  open  to  relocation  because 
of  the  abandonment  of  the  old  location,  or  the  nonperformance  of  all 
the  location  acts  within  the  statutory  period,  or  for  any  other  reason, 
if  the  boundary  stakes  are  at  the  disposal  of  the  new  locator ;  and,  if 


■252  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

the  latter  may  lawfully  remove  the  old  stakes,  there  seems  to  be  no 
reason  preventing  him  from  allowing  them  to  remain  to  define  the 
same  boundaries  of  the  new  location.  At  any  rate,  so  long  as  they 
remain  and  do  in  fact  actually  represent  the  respective  corners  and 
other  points  of  the  new  location  requiring  such  designation,  and  are 
adopted  as  such,  it  is  unreasonable  to  say  that  they  do  not  mark 
the  location  or  boundaries.     *     *     * 

It  is  true  that  there  is  no  evidence  that  Woodrufif  expressed  to 
any  one  an  intention  to  adopt  the  old  stakes.  But  his  acts  are  as 
effectual  as  spoken  words  to  show  the  fact.  It  appears  that  the  new 
location  was  intended  to  cover  the  territory  of  the  old  location.  The 
location  notice  indicates  this,  as  well  as  the  testimony  of  Hunter 
and  Woodruff.  The  location  certificate,  filed  for  record  by  Wood- 
ruff a  little  over  a  month  after  the  location  notice  was  posted,  so  de- 
scribes the  location  and  claim  as  to  leave  no  doubt  that  it  refers  to 
the  same  lines  and  corners  as  those  of  the  old  location.  And  as  a 
part  of  the  description  the  certificates  under  both  locations  show  the 
location  of  the  corners  by  reference  to  the  same  natural  objects.  For 
example,  it  is  recited  in  each  that:  "From  the  N.  E.  corner  No.  i, 
a  14  inch  stump,  5  feet  high,  bears  S.  70°  W.,  27  feet.  From  the 
S.  E.  corner  No.  2,  a  12  inch  spruce  tree  bears  N.  13°  E.  15  feet." 
The  tree  thus  referred  to  is  called  in  one  certificate  a  "spruce''  tree, 
and  in  the  other  a  "pine"  tree.  The  remaining  identifying  objects 
are  similarly  described  in  both  certificates,  and  the  fact  is  unmistak- 
able upon  the  evidence  that  at  the  time  of  the  new  location,  as  well 
as  when  the  survey  was  made  in  June,  1900,  the  said  corners  and  side 
center  points  were  marked  by  the  stakes  of  the  former  location.  As 
the  intention  to  perform  all  necessary  location  acts  under  the  new 
location  is  clear,  and  new  stakes  were  not  erected,  but  the  location 
certificate  refers  to  and  describes  those  already  in  place,  it  appears 
to  the  court  that  nothing  further  is  needed,  in  the  absence  of  contra- 
dictory evidence,  to  show  an  adoption  of  the  old  stakes.  A  statement 
by  Woodruff  at  the  time  of  such  intention  would  have  added  little, 
if  any,  force  to  the  evidence,  though  it  might  have  explained  what 
is  apparent  without  it.  The  fact  becomes,  if  anything,  more  evident 
when  the  condition  of  the  ground  at  the  time  is  considered.  It  was 
covered  with  snow,  and  at  places  to  a  depth  of  four  or  five  feet, 
rendering  the  staking  of  the  claim  at  that  time  very  difficult,  if  not 
impracticable.  Indeed,  it  appears  that  the  locators  of  the  Merry 
Christmas  did  not  succeed  in  February  in  driving  some  of  their 
stakes  into  the  ground,  in  consequence  of  the  great  depth  of  the 
snow.  In  this  respect  the  case  is  somewhat  similar  to  the  Utah  case 
above  cited.    *    *    * 

7.  Having  acquired  all  the  title  of  the  locators  of  the  Little  Joe 
claim  under  either  location,  it  was  competent  for  the  defendant  to 
record  the  additional  or  amended  certificate  of  April  12,  1907,  and 
claim  thereby  an  original  discovery  made  September  16,  1897,     It 


RECORD. 


=00 


appears  that  such  amended  certificate  as  to  each  of  the  three  claims 
of  defendant  was  signed  in  its  name  by  its  attorney,  who  testified 
that  he  did  so  by  virtue  of  a  power  of  attorney,  which  had  been 
filed  in  the  land  office.  Whether  there  was  authority  for  such  sign- 
ing or  not  is  a  matter  in  which  the  plaintiffs  are  in  no  manner  con- 
cerned. But  by  offering  the  certificates  in  evidence  and  relying  upon 
them,  the  defendant  has  shown  a  ratification  of  the  act  of  its  agent, 
even  in  the  absence  of  original  authority. 

Without  considering  the  remaining  objections  urged  by  defendant 
against  the  validity  of  the  Merry  Christmas  location,  we  conclude,, 
for  the  reasons  above  stated,  that  the  evidence  establishes  the  de- 
fendant's right  of  possession,  and  the  judgment  will  be  affirmed. 


SEYMOUR  V.  FISHER  et  al.  v-    ^         >^      ;  ^ 

(See  post,  p.  569,  for  a  report  of  the  case.)       ■U,  •  |U><-^  Q 

JOHNSON  V.  YOUNG,  et  al.  t>W^^.  "-^V  ^ 

La  i^ 

1893.     Supreme  Court  of  Colorado.     18  Colo.  625,  34  Pac.  173.     . 

Action  by  C.  W.  Young,  George  W.  Farnham,  and  William  El-  { ,^./  . 
liott  against  Albert  A.  Johnson.     From  a  judgment  for  plaintiffs, 
defendant  appeals.    Reversed.  y 

Goddard,    J.*^ — This    is    an    action,    brought    upon    an    adverse  ^LLi^ 
claim,  to  determine  the  right  to  the  possession  and  occupancy  of  a   v»  ^ 
piece  of  ground  claimed  by  appellant  as  a  portion  of,  and  included    V\>Xa 
within,  the  surface  boundaries  of  the  Excelsior  No.  i  lode  mining  tvy^t-^-* 
claim,  and  by  appellees  as  a  portion  of,  and  included  within,  the  sur-  .^^^^  ojv. 
face  b6undaries  of  the  Black  Queen  lode  mining  claim.    The  Excel- 
sior  No.  I  was  discovered  July  28,  1881,  and  the  location  certificate  'M-t^ 
was  filed  for  record  August  18,  1881.     The  Black  Queen  was  dis--fv.^Ou 
covered  July  29,  1881,  and  location  certificate  filed  October  10,  1881.  jj^^^^^yj^^ 
The  ground  in  conflict  is  that  portion  of  the  south  end  of  Excelsior 
No.  I  over  which  the  Black  Queen's  north  side  line  extends.    This  <*»^>^" 
.ground  was,  by  reason  of  priority  of  location,  a  portion  of  Excelsior  (>.-^  ^  ^. 
No.  I ;  and  the  right  of  the  Black  Queen  owners  to  it  depends  upon  ^ 

the  question  of  fact,  whether  the  annual  labor  was  performed  upon^  i-vO-i-^ 
the  Excelsior  lode  in  1883  and  1885 ;  and,  if  not,  whether  the  acts  x,J^^ 
of  the  Black  Queen  owners  in  filing  additional  or  amended  location 
certificates  afTer  such  failure,  and  before  a  resumption  of  work  J^^ 
thereon,  was  an  effectual  relocation  of  that  portion  of  the  Excelsior  ^^^^^^ 
No.  I  lode  claim  now  in  controversy.  -^  i      \      '  ■  a      . 

"Parts  of  the  opinion  are  omitted.     yl^i^^Q,     /l^    ^"^^-TC    ^^     t)Jij^ 


254  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

Error  is  assigned  upon  the  refusal  to  give  certain  instructions 
asked  by  appellant,  and  upon  the  giving  of  certain  instructions 
asked  by  appellees.  The  main  contention  is  presented  by  instruc- 
tion No.  17  given  at  the  request  of  appellees,  which  is  as  follows : 

"If  you  find  from  the  evidence  that  the  Black  Queen  was  a  valid, 
existing  mining  location,  and  that  the  annual  labor  requisite  to 
keep  up  the  same  had  been  performed,  and  that  the  owners  of  said 
Black  Queen  location  filed  an  amended  location  certificate  at  any 
time  while  their  holding  was  in  this  condition,  and  at  a  time 
when  the  Excelsior  No.  i  lode  had  been  abandoned  by  reason  of 
the  failure  of  the  owners  thereof,  during  the  preceding  year,  to 
do  their  annual  assessment  work,  and  before  such  owners  had  re- 
sumed work  upon  the  location  so  abandoned,  and  that  such 
amended  or  additional  location  certificate,  filed  under  the  circum- 
stances stated,  covered  the  ground  in  controversy  in  this  action, 
such  filing  would  give  the  owners  of  the  Black  Queen  location  a 
valid  title  to  the  ground  in  controversy,  and  your  verdict  should 
be  in  their  favor,  provided  you  further  find  from  the  evidence 
that  such  owners  kept  up  the  annual  assessment  work  until  this 
action  was  brought." 

We  think  that  the  law  is  therein  fairly  stated,  and  that  it  cor- 
rectly enunciates  the  conditions  under  which  a  mining  claim  is 
subject  to  relocation  as  abandoned  property,  and  one  of  the  acts 
that  constitute  a  valid  relocation. 

The  acquisition  of  title  to  a  mining  claim  is  conditioned  upon  dis- 
covery and  location,  and  the  condition  upon  which  title  thereto  may 
be  held  until  patent  is  issued  is  the  performance  of  the  annual  de- 
velopment work.  Section  2324  of  the  Revised  Statutes  of  the  United 
States  requires  that  "not  less  than  one  hundred  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  during  each  year. 
*  *  *  And  upon  a  failure  to  comply  with  these  conditions,  the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to  re- 
location in  the  same  manner  as  if  no  location  of  the  same  had  ever 
been  made,  provided  that  the  original  locators,  their  heirs,  assigns  or 
legal  representatives,  have  not  resumed  work  upon  the  claim  after 
failure,  and  before  such  location.  "^  *  *"  The  territory  theretofore 
segregated  by  discovery  and  location  becomes  abandoned,  in  the 
sense  that  it  is  subject  to  location  after  such  failure,  and  before  re- 
sumption of  work  thereon,  in  the  same  manner  as  other  unappro- 
priated public  mineral  domain,  and  is  subject  to  be  taken  by  the 
owners  of  a  junior  location,  under  Gen.  St.  §  2409,  p.  724,  which 
provides :  "If  at  any  time  the  locator  of  any  mining  claim  *  "*'  * 
shall  be  desirous  *  *  *  of  taking  in  any  part  of  an  over-lapping 
claim  which  has  been  abandoned,  *  *  *  such  locator,  or  his  as- 
signs, may  file  an  additional  certificate,     ''''     *     '^"  etc. 

The  case  of  Omar  v.  Soper,  11  Colo.  380,  18  Pac.  Rep.  443.  is  re- 
lied on  as  laying  down  a  doctrine  at  variance  with  this  conclusion, 


RECORD.  255 

but  we  think  the  cases  are  clearly  distinguishable.  *  *  '''  The  lan- 
guage of  the  court  [in  Omar  v.  Soper]  should  be  read  in  the  light  of 
the  facts  in  that  case,  and,  in  so  far  as  any  expressions  are  found 
therein  that  may  seem  to  contradict  the  conclusion  we  have  arrived 
at,  they  should  be  modified. 

Much  stress  is  laid  upon  the  fact  that  the  additional  certificates 
filed  February  23  and  June  16,  1884,  did  not,  in  terms,  specify  that 
they  were  filed  for  the  purpose  of  taking  in  overlapping  abandoned 
ground.  We  think  this  objection  is  without  merit.  The  statute  pro- 
vides that  additional  location  certificates  may  be  filed  for  certain  pur- 
poses. It  does  not  require  that  such  purposes  should  be  expressed 
in  the  certificate, and  in  our  opinion  such  specification  is  not  essential. 
The  filing  of  such  certificate,  if  made  under  proper  conditions,  is 
effectual  for  all  the  purposes  enumerated  in  the  statute,  whether  such 
purposes  are  therein  mentioned  or  not. 

The  essential  condition,  in  this  case,  to  enable  the  Black  Queen 
owners  to  take  in  the  ground  in  controversy,  was  the  failure  to  do 
the  annual  assessment  work  on  the  Excelsior  No.  i  lode  for  the  year 
1883  and  for  the  year  1885.  There  was  conflicting  testimony  mtro- 
duced  on  the  trial  as  to  whether  such  work  had  been  done;  some 
positive  in  its  character,  that  the  work  had  been  done  for  these  years, 
respectively.  Appellant  requested  the  court  to  instruct  the  jury  as 
follows:  No.  4:  "The  court  instructs  the  jury  the  law  does  not  pre- 
sume a  forfeiture,  and  if  the  plaintiffs  claim  that  part  of  the  Excel- 
sior No.  I  lode  became  forfeited,  and  open  to  be  relocated,  which 
they  included  and  embraced  within  their  amended  or  additional  loca- 
tion certificates  filed  in  1884  or  1886,  the  burden  of  proving  the 
annual  labor  was  not  done  on  the  Excelsior  No.  i  lode  is  on  plaintiffs, 
and  unless  they  have  shown  you,  by  a  fair  preponderance  of  evidence, 
the  work  was  not  done,  then  you  are  to  determine  that  question  in 
favor  of  defendant."  This  was  refused.  This  instruction  should 
have  been  given.  It  expresses  the  rule  as  to  the  burden  of  proof  on 
the  question  of  forfeiture  very  favorably  to  the  appellees,  \yhile 
there  is  some  conflict  of  authority  as  to  the  necessity  of  specially 
pleading  a  forfeiture,  there  is  no  exception  as  to  the  rule,  of  which 
we  are  ^advised,  that  relieves  a  party  asserting  a  forfeiture  from  the 
burden  of  proving  it.     *     '•'     '''  •    r  •  1  f^ 

The  refusal  to  give  instruction  No.  4  was  an  error  prejudicial  to 
appellant,  and  compels  the  reversal  of  the  judgment.  The  judgment 
is  reversed,  and  cause  remanded. 

SULLIVAN  ET  AL.  V.  SHARP  et  al. 
1905.     Supreme  Court  of  Colorado.     33  Colo.  346,  80  Pac.  1054- 
Action  by  John  Sullivan  and  others  against  J.  R.  Sharp  and 
others.     From  a  judgment  for  defendants,  plaintiffs  appeal.     Af- 
firmed. 


\J{   w^      w^->*>^ 


•,,   256  LOCATION    OF    LODE   AND   PLACER   CLAIMS. 

J'^'^J-^       The   only  question  argued   and   presented   for  determination  by 
il^i^-reV  this  appeal  is  the  effect  of  an  additional  or  amended  location  cer- 
4^<>Y-^-tificate,  as  provided  in  section  3160,  Mills'  Ann.  St.,  on  the  title  to  a 
^_,.,,j^'^    mining  location  discovered  and  located  within  the  boundaries  of  a 
I KJ         Pi'io'"  valid  location,  as  against  the  title  of  the  claimant  to  the  latter, 
^^■^^-s.  who  had  neglected  to  perform  the  annual  assessment  for  the  year 
**€*~5^T)next  preceding  the  date  of  the  filing  of  such  amended  certificate. 
^,.i,^fi,j^^  The  subject-matter  of  controversy  is  the  conflict  between  two  min- 
I        ing  locations  known  as  the  Quaking  Asp  and    Dog    Nest    lodes. 
'**^**^  ■     These    two    locations    cover    practically    the    same    territory.     The 
l,„jy\^      Quaking  Asp  is  the  prior  location.     The  Dog  Nest  was  discovered 
LjC^LrJ^^'^  located  within  the  boundaries  of  the  Quaking  Asp  in  the  year 
^900.     The  Dog  Nest  applied  for  a  patent,  which  application  was 
■^-1-+  tA  'adversed  by  the  Quaking  Asp.     The  pleadings  are  of  the  character 
^Cjg^J(^  usually  filed  in  adverse  cases.     By  paragraph  7  of  the  answer  filed 
^^I      on  behalf  of  the  claimants  of  the  Dog  Nest,  it  was  averred  that 
-        the    claimants    of    the    Quaking    Asp    had    failed    and    neglected 
^  ^        to   perform    the   annual   assessment   on   their    claim    for   the    year 
y^,        1900,   and   that   subsequent   to  the   1st  day  of  January,    1901,   the 
sJj^r,  claimants  of  the   Dog   Nest   filed   an   amended   and  an   additional 
^-"^^^^^  location  certificate  on  their  claim.     Under  this  location  they  con- 
rVQ  tended  that  the  overlapping  territory  embraced  within  the  bound- 
j,^j^^    aries  of  the  Quaking  Asp  was  duly  and  legally  located  and  appro- 
A  t^u^CJP^^^^^^  ^^  ^  P^^^  ^"*^  parcel  of  the  Dog  Nest  lode.     On  the  trial  it 
'l-aJLC  ^^^^    stipulated   that   the   only   issue   between   the   parties    was    the 
^TajI  performance  of  the  annual  assessment  work  on  the  Quaking  Asp 
■^  *  for  the  years    1899  and   1900.     The  testimony  was  conflicting  on 

these  questions  of  fact,  but  at  the  conclusion  of  the  trial  the  court 
ruled  that  the  filing  of  the  amended  and  additional  location  certifi- 
**"*^  cate  on  the  Dog  Nest  was  of  no  avail  unless  it  appeared  that  the 
"^  rt  original  discovery  and  location  of  that  claim  was  on  unappropriated 
"^  ^^^  Pi-iblic  domain.  The  jury  returned  a  verdict  in  favor  of  the  plain- 
ly ^du^    tiffs,  and  defendants  appeal. 

-t*  KoJU-      Gabbert,  C.  J.  (after  stating  the  facts). — According  to  the  ver- 
dict, the  annual  labor  for  1899  on  the  Quaking  Asp  had  been  per- 
:  rV-e     formed.     It  was   therefore   a  valid   subsisting  location   when   title 
CxJ^^-\  to  the  premises  in  controversy  was  sought  to  be  initiated  by  the 
^   o*^"  claimants  of  the  Dog  Nest.   A  location  based  upon  a  discovery  with- 
i  I    La    "^  ^^^^  limits  of  an  existing  and  valid  location  is  void.    Lebanon  M. 
•fr'^''t ,  Co.  V.  Con.  Rep.  M.  Co.,  6  Colo.  371 ;  Kirk  v.  Meldrum,  28  Colo. 
LvSs/-      453,  65  Pac.  633  ;  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429;  Belk 
V.  Meagher,   104  U.  S.  279,  26  L,  Ed.  735  ;  Moyle  v.  Bullene,  7 
"      ^        Colo.  App.  308,  44  Pac.  69;  Reynolds  v.  Pascoe   (Utah)  66  Pac. 
1064;  Lindley  on  Mines  (2d  Ed.)  §  337:  Tuolumne  Consol.  M.  Co. 
V  V.  Maier,  134  Cal.  583,  66  Pac.  863 ;  Little  Pittsburgh  Cons.  M.  Co. 

Y^"     V.  Amie  M.  Co.  (C.  C.)   17  Fed.  57.  .       a        1^    i 


/  KNOWN    LODES    IN    PLACERS.  257 

/ 

The  statute  in  question  provides,  in  substance,  that  if  the  locator 
of  a  mining  claim  shall  apprehend  that  his  original  certificate  of 
location  was  defective  or  erroneous,  or  that  the  requirements  of 
the  law  in  making  a  location  had  not  been  complied  with,  or  in 
case  he  desires  to  change  the  surface  boundaries  of  his  claim,  or 
take  in  any  part  of  an  overlapping  claim  which  has  been  abandoned, 
that  he  may  file  an  additional  certificate.  Its  evident  purpose  was 
to  permit  the  locator  to  cure  errors  and  defects  or  supply  omissions, 
so  that  a  location  which  was  merely  defective  might  be  rendered 
perfect,  and  also  take  in  territory  embraced  in  abandoned  over- 
lapping claims,  if  so  desired.  It  cannot  avail,  however,  except  it 
appears  that  there  has  been  an  original  location  which  is  valid, 
though  imperfect.  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  iii.  In 
other  words  there  must  be  some  rights  in  the  locator  filing  such  cer- 
tificate to  the  ground  which  it  purports  to  include ;  otherwise  it  is  of 
no  effect. 

The  original  location  of  the  Dog  Nest  was  a  nullity.  Not  an  act 
had  been  performed  by  the  claimants  of  that  location  which  gave 
them  the  slightest  right  to  the  ground  in  controversy.  There  were 
no  errors  or  defects  to  cure  or  omissions  to  supply  in  order  to 
perfect  it;  no  rights  in  the  premises  to  which  the  amended  location 
certificate  could  attach  or  to  which  it  could  relate.  The  case  is 
entirely  different  from  Johnson  v.  Young,  18  Colo.  625,  34  Pac. 
173.  In  that  case  the  original  location  was  valid,  because  the 
discovery  upon  which  it  was  based  was  upon  ground  subject  to 
appropriation,  and  it  was  held  that  the  filing  of  an  amended  cer- 
tificate perfected  the  title  to  the  parts  of  the  claim  overlapping  a 
prior  location  abandoned  before  the  amended  certificate  was  filed. 

The  judgment  of  the  district  court  is  affirmed.  ktt»<^u.< 

Affirmed. -^^  '^3h44^»^  KM'ht^^  t^-^T*'  '•*^*^  W<*^  v^-  *-5  •.  ►'*fv 

0-,,-^V  »^U  i^ViQi^x-vj^  i-u^i-U^Y   i  ftu^  Icuu^  <UJlK  Iit>*-I 

Section  5.— Known  Lodes  in  Placers.  f^,^^^\r  \^\  <SJiJL  ^-^j^,  V  IfHivct'c-t^ 
FEDERAL  STATUTE.    >^  (*-M  "^^^^f^ V  ^  6c^  -0 

Sec.  2333.     Where  the  same  person,  association,  or  corpbration  is  in  iJo#-^  ^    , 
session  of  a  placer  claim,  and  also  a  vein  or  lode  included  within  the  boun-''^7    tw 
daries  thereof,  application  shall  be  made  for  a  patent  for  the  placer  claim,  A^  ^,^  _ 
with   the   statement  that   it  includes   such  vein   or   lode,   and  in   such   case   a    ■ 
patent  shall  issue  for  the  placer  claim,  subject  to  the  provisions  of  this  chap-  k  -•  '    I 
ter,  including  such  vein  or  lode,  upon  the  payment  of  five  dollars  per  acre  ^,., 
for  such  vein   or  lode  claim  and  twenty-five   feet  of  surface  on  each  side 

(     '*'"It,  of  course,  is  true  that  by  amendment  a  void  location  cannot  be  made  v 

I  to  cut 'out  an  intervening  location;  but  there  was  no  intervening  location  ine».«J^  ^ 
the  case  of  Sullivan  v.  Sharp.  The  Colorado  decision  [Johnson  v.  Young,  ante]  w.-,jvx 
that  a  valid  junior  location  could  acquire  conflicting  senior  ground  by  amend-  ^ 
ment  after  the  senior  ground  became  subject  to  relocation  would  seem  to  J-^^;*^ 
call  for  a  different  determination  of  Sullivan  v.  Sharp. '—Costigan,  Mining  L,3_,f4^ 
Law,  222.  ^Uc*^  o-,:^-u^*^ii^tr^':i    r-v-^  ^^^    ''^     *  '^    ' 

17— Mining  Law     vjfr^    W  KMj-A-f^-i  r.   ^^^^"T  isJf  fKv  '"AvU   4^  Hx  ^ , 

?acu-^  h^f^^  r.^e^H:-.  '.t.TT,^    '^^^2  \^"^^ 


' {^^7vt5^  location  of  lode  and  placer  claims. 

JA*A.  -fj^gj-eof.    The  remainder  of  the  placer  claim  or  any  placer  claim  not  embracing 

y^^       any  vein  or  lode  claim  shall  be  paid  for  at  the  rate  of  two  dollars  and  fifty 

f  'j     cents  per  acre,  together  with  all  costs  of  proceedings;  and  where  a  vein  or 

L{,      '      lode,   such   as   is    described   in   section   twenty-three   hundred   and   twenty,   is 

-  I  jj-       known  to  exist  within  the  boundaries  of  a  placer  claim,  an  application  for  a 

^  ^  '*  t    patent  for  such  placer  claim  which  does  not  include  an  application  for  the 

li^^/      vein  or  lode  claim  shall  be  construed  as  a  conclusive  declaration  that  the  claim- 

»=-  ant  of  the  placer  claim  has  no  right  of  possession  of  the  vein  or  lode  claim; 

Vy\^-       but  where  the  existence  of  a  vein  or  lode  in  a  placer  claim  is  not  known,  a 

patent  for  the  placer  claim  shall  convey  all  valuable  mineral  and  other  de- 

■  posits  within  the  boundaries  thereof.     Rev.  St.  U.  S.,  §  2333. 

.;vwv^  ,    7o  if  J. '  McCONAGHY  v.  DOYLE  et  al. 

1903.     Supreme  Court  of  Colorado.     32  Colo.  92,  75  Pac.  419. 


ffMlN 


Action  by  J.   M.  Doyle  and  others  against  John  ]McConaghy. 
c  (-♦^.y  From  a  judgment  for  plaintiffs,  defendant  appeals.    Reversed. 
^  Gabbert,  J.^^ — The  subject-matter  of  controversy  between  the 

parties  to  this  appeal  is  mining  premises  claimed  by  appellant  as 
wvv '     the  Conejos,  and  the  appellees  as  the  Victor  Addition,  lode.    Ap- 
pellees,  as  the  ow^ners  of  the  Victor  Addition,  brought  suit  against 
K  appellant,   as   defendant,   in   support  of  their  adverse  against  the 

^-^       application  of  the  latter  for  patent  to  the  Conejos  lode.     From  a 
•-wT       judgment  in  favor  of  plaintiffs,  the  defendant  appeals. 
Lf/-^         The  boundaries  of  the  respective  claims  are  identical.     The  Con- 
fc/L        ejos  is  the  older  location;  having  been  located  in  November,  1893. 
^r^      There   is   no   question   about  its   validity  originally.    The   only   at- 
tack made  upon  it  at  the  trial  was  that  the  assessment  for  1895  had 
^-y^      not  been  performed.     The  performance  of  the  assessments  for  the 
^^jj:;_  subsequent  years  is  not  questioned.    In  February,  1896,  the  Victor 
j  Addition  was  located ;  the  discovery  and  location  being  made  upon 
tract  C  of  a  placer  claim  known  as  the  "Eldorado."     Application 
for  patent  on  this  placer  was  made  on  September  24,   1894,  and 
j^     thereafter  prosecuted  to  completion.    The  patent  therefor  includes 
^""^^    the  tract  upon  which  the  discovery  and  location  of  the  Victor  Addi- 
W     tion  were  made.    The  right  so  to  do  on  the  part  of  the  claimants  of 
•  w>«4^    the  Victor  Addition  lode  is  asserted  upon  the  ground  that  the  vein 
X^      upon  which  the  discovery  and  location  are  based  was  known  at 
►  cA      ^^  ^\va^  of  the  application  for  patent  upon  the  Eldorado   placer. 
^*     This  proposition  is  controverted  on  the  part  of  the  claimant  of  the 
^4v«.-      Conejos,  the  contention  in  his  behalf  being  that   the  vein  upon  which 
^AA(\  the  Victor  discovery  and  location  are  based  Avas  not  known  at  the 
time  application  for  patent  on  the  Eldorado  placer  was  made.     It  is 
L<a4      immaterial,  therefore,  whether  the  assessments  was  performed  upon 

^"  Part  of  the  opinion  is  omitted,  ji      4-c 


V»A  > 


^^  P^   ^^  |/^^^^^^^^^^^-^  r-Xv'  vA^^^^  2^^o. 

the  Conejos  for  1895  or  not,  if  it  should  appear,  as  contended  by  nLe«.<o 
counsel  for  appellant,  that  the  vein  which  is  the  basis  of  the  loca- 
tion  of  the  Victor  Addition  lode  was  not  known  to  exist  at  the  time  ^-■■^^-*^ 
of  the  application  for  patent  on  the  Eldorado,  for  the  reason  that  if  l>*  A^^ 
the   location  of  the   Victor  Addition  was  of  no  validity,   because  (^tc^ 
made   within   the   boundaries   of   a  prior   valid   placer   location,   itJlj 
could  not  prevail  over  the  Conejos.     The  real  question,  therefore, '^^'^^ 
presented  for  determination,  is,  what  constitutes  a  "known  \ein"^f^*^C 
within  the  limits  of  a  placer  at  the  time  application  for  patent  there-  VuJ'/ 
for  is  made,  when  that  question  is  a  collateral  issue  between  a  placet^  ,     f, 
and  a  subsequent  lode  location ?     This  was  one  of  the  litigated  ques-Tj*!.' 
tions  determined  below,  and  it  becomes  necessary  to  briefly  notice  V*^' J 
the  testimony  bearing  on  this  question,  for  the  purpose  of  ascer-^'^*  ^ 
taining  whether  or  not  it  was  sufficient  to  sustain  the  finding  of  ^^  '  "^ 
the_  jury  that    the  vein  located  by  the  Victor  Addition,  by  virtue  of  0^./(-<-«- 
which  the  premises  in  controversy  are  claimed  by  appellees,   was  \,,,_xt  H 
known  at  the  time  application  for  patent  was  made  upon  the  El-  i 

dorado  placer.  U,«vvt< 

Tract    C   of   the   placer   in    question,    within   the   boundaries   of    Ut'-^ 
which  the  Victor  Addition  discovery  shaft  was  sunk,  and  location   \^,^  y^,^ 
notice   erected,   is   20   feet   square,   and   is   located   something  over   7^    y«- 
200  feet  south  of  the  discovery  shaft  of  the  Conejos,  and  a  little  to  f^*"^ 
the  west  of  the  center  of  the  premises  in  dispute.    There  was  testi-  fr«-<d/> 
mony  to  the  effect  that  the  vein  upon  which  the  discovery  and  loca-  ^    ^^ 
tion  of  the  Conejos  is  based  passes  through  tract  C,  and  may  be  ^  S"^^ 
the  same  vein  disclosed  in  the  discovery  shaft  of  the  Victor  Addi-  i-^t^cs 
tion ;  that  a  vein  was  disclosed  within  a  few  feet  of  the  northwest  '»  .  •  t 
corner  of  tract  C  of  the  placer;  and  that,  at  the  time  application   ^"^ 
for  patent  for  the  placer  was  made,  there  were  indications  of  the^^*^' 
outcrop  of  a  vein  within  tract   C.     This  vein,  however,   was  not  ■ 
claimed  as  the  Victor  Addition  nor  was  any  work  done  upon  it  '"  '    '- 
until  after  the  application  for  patent  on  the  placer  had  been  made.  -S'Cl-^ 
The  shaft  then  excavated  disclosed  some  mineral,  but  there  is  no  hs^ji) 
testimony  whatever  of  the  existence  of  a  vein  within  the  limits  of  jfi^^JX-^q 
tract  C,  or  that  the  vein  upon  which  the  Victor  Addition  claim  was  y 

located  contained  or  disclosed  mineral    of    a  quantity    or    quality  ^"^  '"^ 
which  would  justify  its  being  operated  as  a  mine.     In  short,  the'*HK4/„{ 
testimony  is  to  the  effect  that  while  there  may  be  evidence  of  thei^^  ^^, 
existence  of  a  vein  within  the  limits  of  tract  C  of  the  placer,  and       )i 
upon   which  the  Victor  Addition  location  is  based,  the  shaft  does  not  |   I"'^^ 
disclose,  nor  was  any  mineral  in  a  vein  within  the  limits  of  this  "^aaaA^ 
tract  ever  disclosed,  in  quantity  or  value  which  would  justify  ex-^LtkCA^ 
penditure    for   the   purpose   of   extraction.  >  ih. 

Section  2333,  Rev.  St.  U.  S.  [U.  S.  Comp.  St.  1901,  p.  1433],  P^^~^yTt 
vides,  in  substance,  that  patent  to  a  placer  shall  not  convey  title  to^L/^-*^ 
veins  included  within  the  boundaries  thereof  known  to  exist  at  the  t»v-^<H 

iK/v^^,.    r^kii^a^  Ak^vflrv^AK   o-r^i^'Wjr'^  c 


^*.#^  k^^Tv  Ux^x4^  hx^.^ir^^.r^  OJi<^   u^^<a>U^*, 

^    260  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

,^aJ^f       time  application  for  a  patent  for  the  placer  is  made,  but  that  unknown 

A  veins  embraced  within  the  limits  of  a  placer  pass  to  the  placer  paten- 

^    ,      tees.     Known   veins   are  thus   exempted   from   patent   applications 

*^^^       on  placers  by  operation  of  law,  but  unknown  veins  are  not.     The 

I  Si^t      purpose  of  this  statute  was  twofold  :  ( i )  To  prevent  title  to  known 

^       veins  from  being  obtained  by  placer  patents;  and   (2)   to  protect 

''  ■        the  placer  patentee   in  his  title  to  all  mineral   and  other  deposits 

jf-*-{/  within  the  boundaries  of  his  claim  not  known  to  exist  at  the  time 

application  for  patent  therefor  was  made. 

The  earlier  decisions  on  the  subject  of  what  constitutes  "known 
veins"  within  the  limits  of  a  placer  are  not  altogether  clear  or  har- 
monious, but,  without  attempting  to  enter  into  any  extended  dis- 
cussion of  the  question  at  this  time,  it  is  sufficient  to  say  that  it  is 
now  settled  that,  as  between  placer  and  subsequent  conflicting  lode 
locations,  a  known  vein  within  the  limits  of  a  placer,  when  that 
question  is  raised  collaterally,  is  one  known  to  exist  at  the  time 
^   t^^  of  application  for  patent  for  such  placer,  and  to  contain  minerals 
■*j      ^     in  such  quantity  and  quality  as  to  justify  expenditure  for  the  pur- 
"^     pose  of  extracting  them.     Iron  Silver  M,  Co.  v.  Mike  &  Starr  G. 
:X,'-        &.  S.  M.  Co..  143  U.  S.  394,  12  Sup.  Ct.  543,  36  L.  Ed.  201  ;  Mon- 
J^      tana  Central  Ry.  Co.  v.  Migeon  (C.  C.)  68  Fed.  811,  affirmed  in  yy 
Fed.  249,  23  C.  C.  A.   156;  Brownfield  v.  Bier   (Mont.)   39  Pac. 
*  ^'      461 ;  Casey  v.  Thieviege  (Mont.)  48  Pac.  394,  61  Am.  St.  Rep.  511 ; 
U.  S.  v.  Iron  Silver  M.  Co.,  128  U.  S.  673,  9  Sup.  Ct.  195,  32  L. 
Ed.  571 ;  Largey  et  al.  v.  Black,  10  Land  Dec.  Dep.  Int.  156;  Butte 
&  B.  M.  Co.  V.  Sloan  (Mont.)  40  Pac.  217;  2  Lindlev   on    Mines, 

§  781. 
*  It  is  also  settled  that  the  burden  of  proof  in  such  circumstances  isi 

i"^       upon  the  lode  claimant  to  establish  by  clear  and  convincing  testi-/ 

u^_f.      mony  that  the  vein  or  veins  which  he  claims  are  exempted  from 

r^      the  placer  application  by  operation  of  law  are  of  the  character  which 

"  *<^^  will  render  them  known  veins,  as  above  defined.     Mon.  Central.  Ry 

l^ii^r^Co.  V.  Migeon,  supra;  i   Snyder  on  Mines,  §  666;  Cripple  Creek 

h  ft,:\  Gold  Min.  Co.  v.  Mt.  Rosa  Mining,  Milling  &  Land  Co.,  26  Land/ 

If  ^.,      Dec.  Dep.  Int.  622. 
»    Yj  These  decisions  are  based  upon  the  proposition  that  one  claim- 

Li^^j^ff  jng  land  as  a  lode  location,  as  against  a  prior  placer  location  up- 
•4  li  on  which  patent  has  issued,  must  establish  that  the  ground  so  claim- 
,  W^'^^d  was  known  to  be  valuable  to  operate  as  a  lode  mining  claim  when 
^Jjk^  application  for  patent  was  made  upon  the  placer,  and  that,  unless 
f  ,  this  does  appear  as  a  fact,  he  will  not  be  permitted  to  take  it  from 
''K  ,  another  who  has  previously  located  it  as  a  placer  claim,  and  ob- 
i^vwtained    patent    therefor.     Mere    outcroppings    or    other    indications 

^       of  a  vein  within  the  limits  of  a  placer,  or  evidence  of  the  existence 

'  --^  of  a  vein  which  might  be  sufficient  to  support  a  lode  location  as 

|)^w«^  4  against    a   conflicting   lode    claim,    or    sustain    a   lode    location   as 

0^  |<W>/    Uj^J^^  t  (jh-iH/^^  ^  ^^^^'  f"^^  ^^^^ 


'  KNOWN    LODES    IN    PLACERS.  -    261     ^V 

I  against  a  subsequent  placer  location  in  an  adverse  proceeding,  are 
.  1|  not  sufficient  to  establish  the  existence  of  a  known  vein  or  lode  with- 
//  in  the  boundaries  of  a  placer  prior  in  point  of  time,  and  which  has 
/      been  patented. 

The  testimony  in  this  case  wholly  fails  to  establish  a  state  of 
facts  which  would  justify  the  conclusion  that  a  "known  vein''  ex- 
isted within  the  limits  of  tract  C  of  the  Eldorado  placer  at  the 
time  the  patent  was  applied  for,  or  at  any  subsequent  date.  There 
may  be  a  vein  within  this  tract  which  shows  mineral  in  appreciable 
quantities,  but  it  does  not  appear  that  it  is  of  such  quantity  or 
quality  as  would  justify  expenditures  for  the  purpose  of  extract- 
ing it. 

Since  this  cause  was  tried  below,  we  have  had  occasion  to  consider 
the  relative  rights  of  locators  of  mineral  claims  of  one  class,  as 
against  subsequent  locators  of  another  class,  in  the  case  of  Cleary  v. 
Skiffich,  28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207,  which  we 
cite  as  an  additional  authority  supporting  our  conclusion  that  the 
evidence  in  this  case  wholly  fails  to  establish  the  existence  of  a 
known  vein  within  the  limits  of  tract  C  of  the  Eldorado  placer. 

In  discussing  the  location  of  the  Victor  Addition,  which  was  with- 
in the  boundaries  of  tract  C,  we  must  not  be  understood  as  recog- 
nizing that  the  locators  of  the  lode  had  the  right  to  enter  upon 
tract  C,  and  there  prospect  for  the  purpose  of  discovering  a  vein. 
That  question  is  immaterial  in  this  case,  for  two  reasons :  ( i )  The 
testimony  fails  to  establish  the  existence  of  any  vein  in  tract  C 
which  was  exempt  from  the  operation  of  the  patent;  and  (2)  the 
work  claimed  as  the  discovery  shaft  of  the  Victor  Addition  did  not 
disclose  a  known  vein,  within  the  meaning  of  the  law,  as  applied 
to  the  facts  of  this  case.    *    *    * 

The  contention  that  the  application  for  patent  of  the  Eldorado 
placer  could  not  be  amended  so  as  to  take  in  the  discovery  shaft 
of  the  Victor  Addition  lode  is  clearly  without  merit.  This  amend- 
ment, in  so  far  as  it  has  any  bearing  on  the  case,  only  reduced  the 
area  of  tract  C,  and  therefore  did  not  embrace  any  additional  terri- 
tory. Consequently  the  relative  rights  of  the  placer  and  lode  were 
in  no  manner  changed,  because  tract  C,  as  originally  described  in 
the  patent  applied  for,  included  the  Victor  Addition  shaft.  The 
fact  that  such  application  was  amended  after  location  of  the  Vic- 
tor Addition  lode  is  not  material,  in  the  circumstances  of  this  case. 
At  the  time  the  original  application  for  patent  on  the  Eldorado 
placer  was  filed,  the  vein  within  the  limits  of  tract  C  was  not  a 
"known  vein,"  and  its  character  in  this  respect  has  not  been  changed 
at  the  time  the  placer  application  for  patent  was  amended. 

The  Conejos  lode,  and  also  a  claim  known  as  the  "Unexpected," 
were  located  prior  to  the  application  for  patent  on  the  Eldorado 
placer.     In  both  instances  the  ground  embraced  within  these  lodes 


262  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

included  tract  C.  The  location  of  each  lode  claim  was  duly  per- 
fected. For  these  reasons,  it  is  asserted  that,  according  to  the  decision 
in  Noyes  v.  Mantel,  [127  U.  S.  148]  it  must  be  held  that,  when 
patent  was  applied  for  upon  the  placer,  the  patentee  was  charged 
with  notice  of  the  existence  of  a  known  vein  within  the  limits  of 
tract  C.  The  Unexpected  was  abandoned  prior  to  the  issuance  of  pat- 
ent for  the  placer,  and,  as  no  mineral  was  disclosed  in  any  vein 
upon  this  claim  which  would  justify  expenditure  for  the  purpose 
of  extraction,  the  fact  that  the  Unexpected  was  once  an  existing 
lode  location  is  of  no  moment.  Migeon  v.  Mont.  Central  Ry.  Co., 
yj  Fed.  249,  23  C.  C.  A.  156.  Whether  or  not  the  placer  men- 
tioned in  Noyes  v.  Mantel  was  located  subsequent  or  prior  to  the 
lode  claim  conflicting  therewith  is  not  expressly  stated,  but,  as 
we  read  that  case,  it  appears  the  lode  was  the  prior  location,  for  it 
was  held  that  the  statute — section  2333,  Rev.  St.  U.  S.  [U.  S. 
Comp.  St.  1901,  p.  1433] — did  not  apply  to  lodes  or  veins  within 
the  boundaries  of  a  placer  which  had  been  previously  located.  The 
test,  then,  in  applying  the  law  as  announced  in  Noyes  v.  Mantel, 
is  not  the  relative  dates  of  the  location  of  the  lode  and  application 
for  patent  on  the  placer,  but  the  relative  dates  of  the  respective  loca- 
tions. What  might  now  be  the  law,  in  case  it  appeared  the  Con- 
ejos was  located  prior  to  the  Eldorado  placer,  it  is  not  necessary  to 
determine,  for  that  question  is  not  presented,  and  we  express  no 
opinion  on  that  proposition. 

From  the  record  now  before  us,  it  does  not  appear  that  the  Victor 
Addition  lode  was  located  upon  a  vein  exempted  from  the  operation 
of  the  patent  issued  on  the  Eldorado  placer.  Consequently,  its 
validity  as  a  lode  location  was  not  established. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause  re- 
manded for  a  new  trial.   Reversed  and  remanded."^ 

^'  But  in  Noyes  v.  Clifford,  Zl  Mont.  138,  94  Pac.  842,  the  view  is  adopted 
that  any  lode  which  will  support  a  location  and  was  known  to  be  such  at 
the  time  of  application  for  patent  of  the  placer  is  a  "known  lode."  The  opin- 
ion by  Brantly,  C.  J.,  says  that  this  "is  a  just  rule;  for  if  the  quartz 
claimant  be  required  in  all  cases  to  show  that  the  vein  must  be  known  to 
contain  at  the  time  of  the  application  for  patent  ore  of  such  extent  and  value 
that  it  can  be  extracted  with  profit  without  previous  exploitation,  in  accord- 
ance with  the  theory  of  counsel  for  plaintiffs  as  indicated  by  the  instruction 
requested,  then  it  would  scarcely  ever  be  possible  in  localities  where  the 
tops  of  the  veins  have  been  leached  to  establish  the  existence  of  a  known  vein 
in  the  ground  covered  by  the  placer  patent.  Different  conditions  are  found 
in  different  localities.  It  is  often  the  case  that  a  lode  or  vein,  well  defined 
on  the  surface,  contains  small  values  at  the  surface,  whereas  a  moderate 
amount  of  development  exposes  below  ore  bodies  of  immense  value.  It  is 
well  known  that  this  condition  prevails  generally  throughout  the  mining 
districts  of  Montana.  To  say  that  such  veins  are  not  among  those  excepted 
from  the  operation  of  the  placer  patent  would  be  equivalent  to  declaring  the 
rule  that  the  particular  vein,  though  clearly  ascertained,  must  be  known  to 
contain  at  the  surface  deposits  which  may  then  be  profitably  extracted,  or 
the   application    for   the   placer   patent   of   itself   forever   thereafter    excludes 


KNOWN    LODES    IN    PLACERS.  263 

CLIPPER  MINING  COMPANY  v.   ELI   MINING  &  LAND 

COMPANY. 

1904.     Supreme  Court  of  the  United  States. 
194  U.  S.  220,  48  L.  ed.  944,  24  Sup.  Ct.  632. 

In  error  to  the  Supreme  Court  of  the  State  of  Colorado  to  re- 
view a  judgment  which  affirmed  a  judgment  of  the  District  Court  of 
Lake  County  in  that  state  in  favor  of  plaintiffs  in  an  action  in  sup- 
port of  an  adverse  claim  of  the  owners  of  a  placer  mining  location 
against  an  application  for  a  patent  for  a  lode  claim  within  the  ex- 
terior boundaries  of  the  placer  location.    Affirmed. 

Statement  by  Mr.  Justice  Brewer  : 

On  December  12,  1877,  A.  D.  Searl  and  seven  associates  made  a 
location  of  placer  mining  ground  near  the  new  mining  camp  of  Lead- 
ville.  The  claim  embraced  at  that  time  157.02  acres  of  land.  The 
original  locators  shortly  conveyed  all  their  interest  to  A.  D.  Searl, 
who  applied  for  a  patent  on  July  5,  1878.  The  application  was  met 
at  the  Land  Office  with  a  multitude  of  adverse  claims.  Settlements 
were  made  with  some  of  the  contestants,  and  on  November  10,  1882, 
an  amended  application  for  patent  was  filed,  including  only  101.916 
acres.  This  application  was  rejected  by  the  Commissioner  of  the 
General  Land  Office  on  March  6,  1886,  and  his  decision  was  affirmed 
by  the  Secretary  of  the  Interior  on  November  13,  1890.  On  Novem- 
ber 25,  1890,  four  lode  claims,  known  as  the  Clipper,  Castle,  Con- 
gress, and  Capital,  were  located  by  parties  other  than  the  owners  of 
the  placer  claim  within  the  exterior  boundaries  of  that  claim.  These 
four  lode  claims  became,  by  mesne  conveyances,  the  property  of  the 
Clipper  Mining  Company.  It  applied  for  a  patent,  and  on  November 
23,  1893,  the  defendants  in  error,  as  the  owners  of  the  Searl  placer  lo- 
cation, filed  an  adverse  claim  and  commenced  this  action  in  the  dis- 
trict court  of  Lake  county,  in  support  of  that  claim.  Judgment  was 
rendered  in  favor  of  the  plaintiffs,  which  was  affirmed  by  the  supreme 
court  of  the  state  (29  Colo.  377,  93  Am.  St.  Rep.  89,  68  Pac.  286,) 
and  thereafter  this  writ  of  error  was  sued  out. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court  :^^ 

The  location  of  the  placer  mining  claim  and  both  the  original  and 
amended  applications  for  patent  thereof  were  long  prior  to  the  loca- 
tions of  the  lode  claims,  and  the  contention  of  the  plaintiffs  is  that 
they,  by  virtue  of  their  location,  became  entitled  to  the  exclusive 

claim  by  one  who  knows  or  discovers  its  value.  The  purpose  of  the  statute 
is  to  require  good  faith  on  the  part  of  the  placer  claimant,  so  that  he  may 
not,  under  the  cover  of  a  large  area  of  land  which  he  may  acquire  under 
the  name  of  placer,  obtain  title  to  the  quartz  deposits  also,  without  making 
the  proper  claim  for  them,  and  the  additional  payment  required  by  law  for 
the  lands  containing  them."  (94  Pac.  at  848.) 
^'  Parts  of  the  opinion  are  omitted. 


264  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

possession  of  the  surface  ground;  that  the  entry  of  the  lode  dis- 
coverers was  tortious  and  could  not  create  an  adverse  right,  even 
though,  by  means  of  their  entry  and  explorations  they  discovered  the 
lode  claims.  The  defendant,  on  the  other  hand,  contends  that  the 
original  location  of  the  placer  claim  was  wrongful,  for  the  reason  that 
the  ground  included  within  it  was  not  placer  mining  ground ;  that  the 
intent  of  the  locators  was  not  placer  mining,  but  the  acquisition  of 
title  to  a  large  tract  of  ground  contiguous  to  the  new  mining  camp 
of  Leadville,  and  likely  to  become  a  part  of  the  townsite.  In  fact,  it 
was  thereafter  included  within  the  limits  of  the  town,  and  on  it 
streets  and  alleys  have  been  laid  out  and  many  houses  built  and  occu- 
pied by  individuals  claiming  adversely  to  the  placer  location. 

It  is  the  settled  rule  that  this  court,  in  an  action  at  law,  at  least, 
has  no  jurisdiction  to  review  the  conclusions  of  the  highest  court  of 
a  state  upon  questions  of  fact.  Republican  River  Bridge  Co.  v. 
Kansas  P.  R.  Co.  92  U.  S.  315,  23  L.  ed.  515;  Dotver  v.  Richards, 

151  U.  S.  658,  38  L.  ed,  305,  14  Sup.  Ct.  Rep.  452 ;  Israel  v.  Arthur, 

152  U.  S.  355,  38  L.  ed.  474,  14  Sup.  Ct.  Rep.  583  ;  Noble  v.  Mitchell, 
164  U.  S.  367,  41  L.  ed.  472,  17  Sup.  Ct.  Rep.  no;  Hedrick  v.  At- 
chison, T.  &  S.  F.  R.  Co.  167  U.  S.  6'/^-6yy,  42  L.  ed.  320,  321,  17 
Sup.  Ct.  Rep.  922 ;  Turner  v.  Nezv  York,  168  U.  S.  90-95,  42  L.  ed. 
392-394.  18  Sup.  Ct.  Rep.  38 ;  Egan  v.  Hart,  165  U.  S.  188,  41  L.  ed. 
680,  17  Sup.  Ct.  Rep.  300.  It  must,  therefore,  be  accepted  that  the 
Searl  placer  claim  was  duly  located,  that  the  annual  labor  required 
by  law  had  been  performed  up  to  the  time  of  the  litigation,  that  there 
was  a  subsisting  valid  placer  location,  and  that  the  lodes  were  dis- 
covered by  their  locators  within  the  boundaries  of  the  placer  claim 
subsequently  to  its  location.  So  the  trial  court  specifically  found,  and 
its  finding  was  approved  by  the  supreme  court.    *    *    * 

So  far  as  the  record  shows — and  the  record  does  not  purport  to 
contain  all  the  evidence — the  placer  location  is  still  recognized  in 
the  Department  as  a  valid  location.  Such  also  was  the  finding  of 
the  court;  and  being  so  there  is  nothing  to  prevent  a  subsequent 
application  for  a  patent  and  further  testimony  to  show  the  claimant's 
right  to  one.  Undoubtedly  when  the  Department  rejected  the  appli- 
cation for  a  patent  it  could  have  gone  further  and  set  aside  the  placer 
location,  and  it  can  now,  by  direct  proceedings  upon  notice,  set  it 
aside  and  restore  the  land  to  the  public  domain.  But  it  has  not  done 
so,  and  therefore  it  is  useless  to  consider  what  rights  other  parties 
might  then  have. 

The  fact  that  many  years  have  elapsed  since  the  original  location 
of  the  placer  claim,  and  that  no  patent  has  yet  been  issued  therefor, 
does  not  affect  its  validity,  for  it  is  a  well-known  fact,  as  stated  by 
the  court  of  appeals  in  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil 
Co.  61  L.  R.  A.  230,  50  C.  C.  A.  79,  112  Fed.  4,  16,  that  "some  of  the 
richest  mineral  lands  in  the  United  States,  which  have  been  owned, 


KNOWN    LODES    IN    PLACERS.  265 

occupied,  and  developed  by  individuals  and  corporations  for  many 
years,  have  never  been  patented."    *    *    * 

By  §  2322  (U.  S.  Comp.  Stat.  1901,  p.  1425)  it  is  provided  that— 

"  The  locators  of  all  mining  locations  ...  on  any  mineral  vein, 
lode,  or  ledge,  situated  on  the  public  domain,  .  .  .  shall  have  the 
exclusive  right  of  possession  and  enjoyment  of  all  the  surface  in- 
cluded within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface  lines  extended  downward  vertically."    *    *    * 

It  will  be  seen  that  §  2322  gives  to  the  owner  of  a  valid  lode  loca- 
tion the  exclusive  right  of  possession  and  enjoyment  of  all  the  sur- 
face included  within  the  lines  of  the  location.  That  exclusive  right 
of  possession  forbids  any  trespass.  No  one,  without  his  consent,  or, 
at  least,  his  acquiescence,  can  rightfully  enter  upon  the  premises 
or  disturb  its  surface  by  sinking  shafts  or  otherwise.  It  was  the 
judgment  of  Congress  that,  in  order  to  secure  the  fullest  working  of 
the  mine,  and  the  complete  development  of  the  mineral  property, 
the  owner  thereof  should  have  the  undisturbed  possession  of  not  less 
than  a  specified  amount  of  surface.  That  exclusive  right  of  pos- 
session is  as  much  the  property  of  the  locator  as  the  vein  or  lode 
by  him  discovered  and  located.  In  Belk  v.  Meagher,  104  U.  S.  279, 
283,  26  L.  ed.  735,  y2>7>  it  was  said  by  Chief  Justice  Waite  that  "a 
mining  claim  perfected  under  the  law  is  property  in  the  highest 
sense  of  that  term;"  and  in  a  later  case  (Givillim  v.  Donnellan,  115 
U.  S.  45,  49,  29  L.  ed.  348,  349,  5  Sup.  Ct.  Rep.  mo,  11 12)  he  adds: 

"A  valid  and  subsisting  location  of  mineral  lands,  made  and  kept 
up  in  accordance  with  the  provisions  of  the  statutes  of  the  United 
States,  has  the  effect  of  a  grant  by  the  United  States  of  the  right  of 
present  and  exclusive  possession  of  the  lands  located.  If,  when  one 
enters  on  land  to  make  a  location,  there  is  another  location  in  full 
force,  which  entitles  its  owner  to  the  exclusive  possession  of  the 
land,  the  first  location  operates  as  a  bar  to  the  second." 

In  St.  Louis  Mill.  &  Mill.  Co.  v.  Montana  Min.  Co.  lyi  U.  S.  650, 
655,  43  L.  ed.  320,  322,  19  Sup.  Ct.  Rep.  61,  63,  the  present  Chief 
Justice  declared  that  "where  there  is  a  valid  location  of  a  mining 
claim,  the  area  becomes  segregated  from  the  public  domain,  and 
the  property  of  the  locator."  Nor  is  this  "exclusive  right  of  pos- 
session and  enjoyment"  limited  to  the  surface,  nor  even  to  the  single 
vein  whose  discovery  antedates  and  is  the  basis  of  the  location.  It 
extends  (so  reads  the  section)  to  "all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside  of 
such  surface  lines  extended  downward  vertically."  In  other  words, 
the  entire  body  of  ground,  together  with  all  veins  and  lodes  whose 
apexes  are  within  that  body  of  ground  becomes  subject  to  an  ex- 
clusive right  of  possession  and  enjoyment  by  the  locator.  And  this 
exclusive  right  of  possession  and  enjoyment  continues  during  the 
entire  life  of  the  location,  or,  in  the  words  of  Chief  Justice  Waite, 


266  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

just  quoted,  while  there  is  "a  vaHd  and  subsisting  location  of  mineral 
lands,  made  and  kept  up  in  accordance  with  the  provisions  of  the 
statutes  of  the  United  States."  There  is  no  provision  for,  no  sug- 
gestion of,  a  prior  termination  thereof. 

By  §  2329,  placer  claims  are  subject  to  entry  and  patent  "under  like 
circumstances  and  conditions,  and  upon  similar  proceedings,  as  are 
provided  for  vein  or  lode  claims."  The  purpose  of  this  section  is 
apparently  to  place  the  location  of  placer  claims  on  an  equality  both 
in  procedure  and  rights  with  lode  claims. 

If  there  were  no  other  legislation  in  respect  to  placer  claims  the 
case  before  us  would  present  little  doubt ;  but  following  this  are  cer- 
tain provisions,  those  having  special  bearing  on  the  case  before  lis 
being  found  in  §  2333.  Parties  obtaining  a  patent  for  a  lode  claim 
must  pay  $5  an  acre  for  the  surface  ground,  while  for  a  placer 
claim  the  government  only  charges  $2.50  an  acre.  By  §  2333  it  is 
provided  that  one  who  is  in  possession  of  a  placer  claim  and  also  of 
a  lode  claim  included  within  the  boundaries  of  the  placer  claim  shall, 
on  making  application  for  a  patent,  disclose  the  fact  of  the  lode  claim 
within  the  boundaries  of  the  placer,  and  upon  the  issue  of  the  patent 
payment  shall  be  made  accordingly;  that  if  the  application  for  the 
placer  claim  does  not  include  an  application  for  a  vein  or  lode  claim 
known  to  exist  within  the  boundaries  of  the  placer,  it  shall  be  con- 
strued as  a  conclusive  declaration  that  the  placer  claimant  has  no 
right  of  possession  of  that  vein  or  lode ;  and  further,  that  where  the 
existence  of  a  vein  or  lode  within  the  boundaries  of  a  placer  claim 
is  not  known,  the  patent  for  the  placer  claim  shall  convey  all  valuable 
mineral  and  other  deposits  within  its  boundaries. 

A  mineral  lode  or  vein  may  have  its  apex  within  the  area  of  a 
tract  whose  surface  is  valuable  for  placer  mining,  and  this  last  section 
is  the  provision  which  Congress  has  made  for  such  a  case.  That  a 
lode  or  vein,  descending  as  it  often  does  to  great  depths,  may  contain 
more  mineral  than  can  be  obtained  from  the  loose  deposits  which 
are  secured  by  placer  mining  within  the  same  limits  or  surface  area, 
naturally  gives  to  the  surface  area  a  higher  value  in  the  one  case  than 
the  other,  and  that  Congress  appreciated  this  difference  is  shown  by 
the  different  prices  charged  for  the  surface  under  the  two  conditions. 
Often  the  existence  of  a  lode  or  vein  is  not  disclosed  by  the  placer 
deposits.  Hence  ground  may  be  known  to  be  valuable  and  be  located 
for  placer  mining,  and  yet  no  one  be  aware  that  underneath  the  sur- 
face there  is  a  lode  or  vein  of  greater  value.  A  placer  location  is  not 
a  location  of  lodes  or  veins  underneath  the  surface,  but  is  simply  a 
claim  of  a  tract  or  parcel  of  ground  for  the  sake  of  loose  deposits 
of  mineral  upon  or  near  the  surface.  A  lode  or  vein  may  be  known 
to  exist  at  the  time  of  the  placer  location  or  not  known  until  long 
after  the  patent  therefor  has  been  issued.  There  being  no  necessary 
connection  between  the  placer  and  the  vein,  Congress  by  the  section 
has  provided  that  in  an  application  for  a  placer  patent  the  applicant 


KNOWN    LODES    IN    PLACERS.  267 

shall  include  any  vein  or  lode  of  which  he  has  possession,  and  that  if 
he  does  not  make  such  inclusion  the  omission  is  to  be  taken  as  a  con- 
clusive declaration  that  he  has  no  right  of  possession  of  such  vein 
or  lode.  If,  however,  no  vein  or  lode  within  the  placer  claim  is 
known  to  exist  at  the  time  the  patent  is  issued,  then  the  patentee 
takes  title  to  any  which  may  be  subsequently  discovered. 

While  by  the  statute  the  right  of  exclusive  possession  and  enjoy- 
ment is  given  to  a  locator,  whether  his  location  be  of  a  lode  claim  or  a 
placer  claim,  yet  the  effect  of  a  patent  is  different.  The  patent  of  a 
lode  claim  confirms  the  original  location,  with  the  right  of  exclusive 
possession,  and  conveys  title  to  the  tract  covered  by  the  location,  to- 
gether with  all  veins,  lodes,  and  ledges  which  have  their  apexes 
therein,  whereas  the  patent  to  the  placer  claim,  while  confirming  the 
original  location  and  conveying  title  to  the  placer  ground,  does  not 
necessarily  convey  the  title  to  all  veins,  lodes,  and  ledges  within  its 
area.  It  makes  no  difference  whether  a  vein  or  lode  within  the 
boundaries  of  a  lode  claim  is  known  or  unknown,  for  the  locator  is 
entitled  to  the  exclusive  possession  and  enjoyment  of  all  the  veins 
and  lodes,  and  the  patent  confirms  his  title  to  them.  But  a  patent  of 
a  placer  claim  wull  not  convey  the  title  to  a  known  vein  or  lode  with- 
in its  area  unless  that  vein  or  lode  is  specifically  applied  and  paid  for. 

It  is  contended  that  because  a  vein  or  lode  may  have  its  apex 
within  the  limits  of  a  placer  claim  a  stranger  has  a  right  to 
go  upon  the  claim,  and,  by  sinking  shafts  or  otherwise,  ex- 
plore for  any  such  lode  or  vein,  and  on  finding  one  obtain  a 
title  thereto.  '  That,  with  the  consent  of  the  owner  of  the  placer 
claim,  he  may  enter  and  make  such  exploration,  and  if  successful, 
obtain  title  to'  the  vein  or  lode,  cannot  be  questioned.  But  can  he  do 
so  against  the  will  of  the  placer  locator  ?  If  one  may  do  it,  others 
may,  and  so  the  whole  surface  of  the  placer  be  occupied  by  stran- 
gers seeking  to  discover  veins  beneath  the  surface.  Of  what  value 
then  would  the  placer  be  to  the  locator?  Placer  workings  are  sur- 
face workings,  and  if  the  placer  locator  cannot  maintain  possession 
of  the  surface  he  cannot  continue  his  workings.  And  if  the  surface 
is  open  to  the  entry  of  whoever  seeks  to  explore  for  veins,  his  posses- 
sion can  be  entirely  destroyed.  In  this  connection  it  may  be  well  to 
notice  the  last  sentence  in  §  2322.  That  section,  from  which  we 
have  just  quoted,  is  the  one  which  gives  a  locator  the  right  to  pursue 
a  vein  on  its  dip  outside  the  vertical  side  lines  of  his  location.  The 
sentence,  which  is  a  limitation  on  such  right,  reads :  "And  nothmg 
in  this  section  shall  authorize  the  locator  or  possessor  of  a  vein  or 
lode  which  extends  in  its  downward  course  beyond  the  vertical  hues 
of  his  claim  to  enter  upon  the  surface  of  a  claim  owned  or  possessed 
by  another."  .  . 

It  would  seem  strange  that  one  owning  a  vem,  and  havmg  a  right 
in  pursuing  it  to  enter  beneath  the  surface  of  another's  location, 


268  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

should  be  expressly  forbidden  to  enter  upon  that  surface,  if,  at  the 
same  time,  one  owning  no  vein,  and  having  no  rights  beneath  the 
surface,  is  at  liberty  to  enter  upon  that  surface,  and  prospect  for 
veins  as  yet  undiscovered. 

We  agree  with  the  supreme  court  of  Colorado  as  to  the  law  when 
it  says  that  "one  may  not  go  upon  a  prior  valid  placer  location  to 
prospect  for  unknown  lodes,  and  get  title  to  lode  claims  thereafter 
discovered  and  located  in  this  manner  and  within  the  placer  bounda- 
ries, unless  the  placer  owner  has  abandoned  his  claim,  waives  the 
trespass,  or,  by  his  conduct,  is  estopped  to  complain  of  it."  Perhaps 
if  the  placer  owner,  with  knowledge  of  what  the  prospectors  are  do- 
ing, takes  no  steps  to  restrain  their  work,  and  certainly  if  he  acqui- 
esces in  their  action,  he  cannot,  after  they  have  discovered  a  vein  or 
lode,  assert  right  to  it,  for,  generally,  a  vein  belongs  to  him  who  has 
discovered  it,  and  a  locator  permitting  others  to  search  within  the 
limits  of  his  placer  ought  not  thereafter  to  appropriate  that  which 
they  have  discovered  by  such  search. 

The  difficulty  with  the  case  presented  by  the  plaintiff  in  error  is, 
that  under  the  findings  of  fact,  we  must  take  it  that  the  entries  of  the 
locators  of  these  several  lode  claims  upon  the  placer  grounds  were 
trespasses,  and  as  a  general  rule  no  one  can  initiate  a  right  by  means 
of  a  trespass.     *     '■'     * 

If  a  placer  locator  is,  as  we  have  shown,  entitled  to  the  exclusive 
possession  of  the  surface,  an  entry  thereon  against  his  will,  for  the 
purpose  of  prospecting  by  sinking  shafts  or  otherwise,  is  undoubt- 
edly a  trespass,  and  such  a  trespass  cannot  be  relied  upon  to  sustain 
a  claim  of  a  right  to  veins  and  lodes.  It  will  not  do  to  say  that  the 
right  thus  claimed  is  only  a  right  to  some  thing  which  belongs  to  the 
United  States,  and  which  will  never  belong  to  the  placer  locator,  un- 
less specifically  applied  and  paid  for  by  him,  and  therefore  that  he 
has  no  cause  of  complaint ;  for  if  the  claim  of  the  lode  locator  be  sus- 
tained it  carries,  under  §§  2320  and  2333,  at  least  25  feet  of  the  sur- 
face on  each  side  of  the  middle  of  the  vein.  Further,  if  there  be  no 
prospecting,  no  vein  or  lode  discovered  until  after  patent,  then  the 
title  to  all  veins  and  lodes  within  the  area  of  the  placer  passes  to  the 
placer  patentee,  and  any  subsequent  discovery  would  enure  to  his 
benefit. 

Again,  it  is  contended  that  the  claims  which  the  defendant  sought 
to  patent  were  lode  claims  ;  that  the  only  title  set  up  in  the  complaint 
in  the  adverse  suit  was  a  placer  title,  and  that  a  placer  claimant  has 
no  standing  to  maintain  an  adverse  suit  against  lode  applica- 
tions.    *     *     * 

Under  the  statutes  a  lode  claim  carries  with  it  the  right  to  a  cer- 
tain number  of  acres,  and  where  one  is  in  peaceable  possession  of  a 
valid  placer  claim,  if  a  stranger  forcibly  enters  upon  that  claim,  dis- 
covers and  locates  a  lode  claim  within  its  boundaries,  and  then  ap- 


KNOWN    LODES    IN    PLACERS.  269 

plies  for  a  patent,  surely  the  placer  claimant  has  a  right  to  be  heard 
in  defense  of  his  title  to  the  ground  of  which  he  has  been  thus  forci- 
bly dispossessed.  If  the  application  for  a  patent  of  the  lode  claim  is 
not  adversed  it  will  pass  to  patent,  and  it  may  well  be  doubted 
whether  the  placer  claimant  could,  after  the  issue  of  a  patent  under 
such  circumstances,  maintain  an  equitable  suit  to  have  the  patentee 
declared  the  holder  of  the  legal  title  to  the  ground  for  his  benefit. 
If  the  placer  claimant  can  be  thus  deprived  of  his  possession  and 
title  to  a  part  of  his  ground,  he  may  be  in  like  manner  dispossessed 
of  all  by  virtue  of  many  forcible  trespasses  and  lode  discoveries. 

The  amount  of  land  embraced  in  this  placer  location  was  about 
100  acres,  while  the  land  claimed  under  the  several  lode  locations 
was  a  little  over  35  acres.  Can  it  be  that  the  placer  claimant  had  no 
right  to  be  heard  in  court  respecting  the  claim  of  the  lode  claimants 
to  so  large  a  portion  of  the  placer  ground  ? 

We  must  not  be  understood  to  hold  that,  because  of  the  judgment 
in  this  adverse  suit  in  favor  of  the  placer  claimants,  their  right  to  a 
patent  for  the  land  is  settled  beyond  the  reach  of  inquiry  by  the  gov- 
ernment, or  that  the  judgment  necessarily  gives  to  them  the  lodes  in 
controversy.     *     '■"     * 

The  Land  Office  may  yet  decide  against  the  validity  of  the  lode 
locations,  and  deny  all  claims  of  the  locators  thereto.  So,  also,  it 
mav  decide  against  the  placer  location,  and  set  it  aside ;  and  in  that 
event  all  rights  resting  upon  such  location  will  fall  with  it. 

Finally,  we  observe  that  the  existence  of  placer  rights  and  lode 
rights  within  the  same  area  seems  to  have  been  contemplated  by 
Congress,  and  yet  full  provision  for  the  harmonious  enforcement  of 
both  rights  is  not  to  be  found  in  the  statutes.  We  do  not  wonder  at 
the  comment  made  by  Lindley  (i  Lindley,  2d  ed.  §  167)  that  "the 
townsite  laws,  as  they  now  exist,  consist  simply  of  a  chronological 
arrangement  of  past  legislation,  an  aggregation  of  fragments,  a  sort 
of  'crazy  quilt,'  in  the  sense  that  they  lack  harmonious  blending. 
This  may  be  said  truthfully  of  the  general  body  of  the  mining  laws." 
Many  regulations  of  the  Land  Department  and  decisions  of  courts 
find  their  warrant  in  an  effort  to  so  adjust  various  statutory  provi- 
sions as  to  carry  out  what  was  beHeved  to  be  the  intent  of  Congress 
and  at  the  same  time  secure  justice  to  miners  and  those  engaged  in 
exploring  for  mines.  If  we  assume  that  Congress,  recognizing  the 
co-existence  of  lode  and  placer  rights  within  the  same  area,  meant 
that  a  lode  or  vein  might  be  secured  by  a  party  other  than  the  owner 
of  the  placer  location  within  which  it  is  discovered,— providing  his 
discovery  was  made  without  forcible  trespass  and  dispossession,— 
it  may  be  that  a  court  of  equity  is  competent  to  provide  by  its  de- 
cree that  the  discoverer  of  the  lode,  within  the  placer  limits,  shall  be 
secured  in  the  temporary  possession  of  so  much  of  the  ground  as 
will  enable  him  to  successfully  work  his  lode,  protecting,  at  the 


2/0  LOCATION  OF  LODE  AND  PLACER  CLAIMS. 

same  time,  the  rights  of  the  placer  locator.  But  such  equitable  ad- 
justment of  coexisting  rights  cannot  be  secured  in  a  simple  adverse 
action,  and  it  would  be,  therefore,  beyond  the  limits  of  proper  in- 
quiry in  this  case  to  determine  the  rights  which  may  exist,  if,  in  the 
end,  the  placer  location  be  sustained  and  a  discovery  of  the  lodes 
without  forcible  trespass  and  dispossession  established. 

But  for  the  present,  for  the  reasons  above  given,  we  think  the 
judgment  of  the  Supreme  Court  of  Colorado  was  right,  and  it  is 
affirmed. 

The  Chief  Justice  and  Mr.  Justice  White  dissent. 


WASHOE  COPPER  CO  v.  JUNILA  et  al. 
1911.     Supreme  Court  of  Montana.     43  ]\Iont.  178,  115  Pac.  917. 

Hollow  AY,  J.^* — This  action  was  brought  by  the  Washoe  Copper 
Company  against  Junila  and  others  to  recover  damages  for  ores 
extracted  from  [placer]  ground  claimed  by  the  plaintiff,  and  for  an 
injunction  to  restrain  further  trespasses.     *     *     * 

Thereafter  Hall  and  others  filed  a  complaint  in  intervention.  *  *  * 
The  trial  court  found  in  favor  of  the  defendants  and  interveners, 
and  rendered  a  decree  in  favor  of  interveners,  adjudging  them  to  be 
the  owners  of  the  ground  claimed  by  them  [as  a  known  lode  in 
placer  765].  From  the  decree  and  an  order  denying  it  a  new  trial, 
the  plaintiff  has  appealed.     *     *     * 

[3]  3.  As  a  part  of  their  proof,  interveners  introduced  in  evi- 
dence, over  the  objection  of  plaintiff,  a  certified  copy  of  the  declara- 
tory statement  of  the  Morning  Star  quartz  lode  mining  claim.  This 
declaratory  statement  purports  to  have  been  made  by  Charles  Col- 
bert in  1877,  and  recites  that  on  July  2,  1877,  Colbert  made  discov- 
ery of  mineral-bearing  rock  in  place  at  a  point  which  is  now  within 
the  boundaries  of  the  ground  claimed  by  plaintiff.  It  is  conceded 
that  the  declaratory  statement  was  not  verified  as  required  by  the 
law  in  force  at  the  time  ;  but  in  offering  the  certified  copy  counsel  for 
interveners  say :  "The  purpose  of  offering  this,  may  it  please  the 
court,  is  not  to  prove  title  under  the  location  itself,  but  for  the  pur- 
pose of  showing  that  this  vein  was  known  to  exist  at  the  time  when 
he  located  it  by  Charles  Colbert,  and  to  show  what  was  done  by 
Charles  Colbert  and  others  with  reference  to  working  the  vein."  In 
O'Donnell  v.  Clenn,  8  Alont.  248,  19  Pac.  302,  this  court  held  that 
a  declaratory  statement  which  does  not  contain  the  required  affidavit 
is  void,  and  that  decision  has  been  followed  uniformly  since.     See 

"  Parts  of  the  opinion  are  omitted. 


KNOWN    LODES    IN    PLACERS.  27I 

Hickey  v.  Anaconda  Copper  Min.  Co.,  33  Mont.  46,  81  Pac.  806. 
Since  the  Morning  Star  declaratory  statement  was  void,  the  receipt 
in  evidence  of  a  certified  copy  of  it  was  error. 

[4]  It  is  apparent  from  the  statement  of  counsel  made  when  the 
copy  was  offered  that  ihe  purpose  of  introducing-  it  was  to  show 
general  knowledge  on  the  part  of  the  people  of  the  community  that 
a  vein  existed  within  the  boundaries  of  the  placer  prior  to  the  appli- 
cation for  patent,  presumably  upon  the  theory  that  proof  of  such 
condition  in  1877  would  tend  in  some  degree  to  establish  knowledge 
of  a  similar  condition  when  the  application  for  placer  patent  was 
made  in  February,  1880.  That  a  void  instrument  cannot  impart 
constructive  knowledge  to  any  one  is  elementary;  and  the  fact  that 
the  trial  court  admitted  this  evidence,  and  that  in  finding  No.  i  ref- 
erence is  made  to  the  Morning  Star  location,  and  the  further  fact 
that  the  court  did  not  find  specifically  that  the  placer  patentees  had 
actual  knowledge  of  the  existence  of  the  vein  at  the  time  when  they 
applied  for  patent,  but  only  that  they  had  such  knowledge,  actual  or 
constructive,  seem  to  justify  the  conclusion  that  the  court  must  have 
attached  some  importance  to  the  contents  of  this  declaratory  state- 
ment. 

[5]  In  order  to  exclude  a  lode  from  a  placer  claim,  the  lode  must 
have  been  known  at  the  time  the  application  for  placer  patent  was 
made ;  but  actual  knowledge  on  the  part  of  the  placer  applicant  is 
not  absolutely  essential.  In  Iron-Silver  Min.  Co.  v.  Mike  &  Starr 
G.  &  S.  Min.  Co.,  143  U.  S.  394,  12  Sup.  Ct.  543,  30  L.  Ed.  201,  it 
is  said :  "It  is  enough  that  it  be  known,  and  in  this  respect,  to  come 
within  the  intent  of  the  statute,  it  must  either  have  been  known  to 
the  applicant  for  the  placer  patent  or  known  to  the  community  gen- 
erally, or  else  disclosed  by  workings  and  obvious  to  any  one  making 
a  reasonable  and  fair  inspection  of  the  premises  for  the  purpose  of 
obtaining  title  from  the  government."  This  rule  has  been  followed 
in  the  mining  states  generally.  Brownfield  v.  Bier,  15  Mont.  403, 
39  Pac.  461. 

It  seems  a  fair  inference  from  this  record  that  the  placer  pat- 
entees who  denied  actual  knowledge  of  the  existence  of  a  vein  within 
the  boundaries  of  their  placer  claim  at  the  time  of  their  application 
for  patent  were  [erroneously]  charged  with  knowledge  of  the  exist- 
ence of  such  vein  by  the  evidence  furnished  by  this  declaratory  state- 
ment.    *     *     * 

[7]  The  immateriality  of  the  [declaratory  statement  as]  evidence 
is  also  apparent,  since  neither  plaintiff  nor  interveners  claimed  under 
the  Morning  Star  location.  In  fact,  the  evidence  shows  that  that 
claim  was  abandoned.     *     *     * 

[10]  5.  In  a  number  of  instances  the  court  permitted  the  inter- 
veners to  show,  over  plaintiff's  objection,  that  there  had  never  been 
any  placer  mining  carried  on  on  placer  765.    The  evidence  was  alto- 


2'J2  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

gether  immaterial.  The  placer  patent  to  Marsh  and  Nichols  estab- 
lished conclusively  the  fact  that  the  ground  was  and  is  placer ;  and 
the  effect  of  the  patent  cannot  be  overcome  by  evidence  that  placer 
mining  operations  were  never  carried  on.  Dahl  v.  Raunheim,  132 
U.  S.  260,  10  Sup.  Ct.  74,  33  L.  Ed.  324 ;  Butte  &  Boston  Min.  Co. 
v.  Sloan,  16  Mont.  97,  40  Pac.  217. 

[11]  6.  The  trial  court  found  that  at  the  date  of  the  application 
for  placer  patent  there  was  a  well-known  lode  within  the  boundaries 
of  placer  765  disclosed  in  workings  at  the  ]\Iorning  Star  shaft ;  that 
the  vein  was  such  as  to  except  it  from  the  general  grant  of  the  placer 
patent,  under  section  2333,  U.  S.  Rev.  St.  (U.  S.  Comp.  St.  1901,  p. 

1433)-     t     *  .* 

In  finding  No.  8  the  trial  court  accepted  interveners'  theory,  and 
decreed  to  them  the  vein  and  25  feet  on  each  side  for  1,500  feet,  and 
thereby  carved  out  of  the  ground  claimed  by  plaintiff  a  parcel  50 
feet  wide  and  about  1,500  feet  long.  *  *  *  Upon  the  record 
before  us,  interveners  were  not  entitled  to  afiirmative  relief.  Assum- 
ing the  existence  of  a  known  lode  within  the  placer  at  the  time  the 
application  for  patent  was  made,  such  lode  is  open  to  location  at  this 
time,  so  far  as  we  are  informed  by  this  record ;  and,  if  so,  the  trial 
court  cannot  by  its  decree  preclude  the  plaintiff  or  any  one  else  from 
locating  it. 

For  the  errors  heretofore  considered  the  judgment  and  order  are 
reversed  and  the  cause  is  remanded  for  a  new  trial. 

Reversed  and  remanded. ^*^ 


Section  6. — Adverse  Possession  as  a  Substitute  for  the  Acts  of  Lo- 
cation. 

HUMPHREYS  et  al.  v.  IDAHO  GOLD  MINES  DEVELOP- 
MENT CO. 

1912.     Supreme  Court  of  Idaho.     120  Pac.  823. 

Action  by  Stacy  W.  Humphreys  and  another  against  the  Idaho 
Gold  Mines  Development  Company.  From  an  order  vacating  a  de- 
fault judgment  for  plaintiffs,  they  appeal.   Affirmed. 

Ailshie,  J.^^ — This  is  an  appeal  from  an  order  setting  aside  a 

"a  In  Butte  Land  &  Investment  Co.  v.  Merriman,  32  Mont.  402,  80  Pac. 
675,  108  Am.  St.  590,  the  fact  that  two  adverse  suits  which  were  brought 
against  a  placer  applicant  by  lode  claimants  were  determined  in  favor  of  the 
placer  applicant  was  not  deemed  an  adjudication  that  there  was  no  known 
lode  within  the  conflict  area  aff^ected  by  these  suits,  as  against  third  parties 
who  did  not  claim  under  the  adversers. 

'"''  Parts  of  the  opinion  are  omitted. 


ADVERSE    POSSESSION.  273 

judgment  and  opening  up  a  default.  The  action  was  commenced  by 
the  plaintiffs,  who  are  appellants  herein,  for  the  purpose  of  quieting 
their  title  to  the  Exchequer  No.  i  and  Exchequer  No.  2  lode  mining 
claim.  *  '^  '^  2.  The  other  question  presented  in  this  case  is  the 
sufficiency  of  the  answer.  The  appellant  contends  that  the  answer  is 
not  sufficient  to  raise  an  issue. 

[4]  The  defendant  by  its  answer  alleges  a  prior  location  of  the 
ground  covered  by  the  Exchequer  No.  i  and  No.  2  claims,  and  sets 
up  copies  of  the  location  notices,  and  alleges  a  discovery  and  the  per- 
formance of  all  the  acts  and  things  necessary  to  be  done  under  the 
law  in  order  to  hold  a  mining  claim. 

As  a  further  defense,  the  defendant  alleges  that  it  has  been  in  the 
open,  exclusive  and  adverse  possession  of  the  claims  prior  to  the 
initiation  of  the  claim  of  plaintiff  for  a  period  exceeding  that  pre- 
scribed by  the  statute  of  limitations  of  this  state  for  adverse  posses- 
sion, and  that  during  such  time  it  continuously  occupied  and  worked 
the  property  and  placed  valuable  improvements  thereon  and  did  the 
work  necessary  to  hold  a  mining  claim.    *    *    * 

Passing  now  to  the  other  question,  we  find  it  stated  thus  in  appel- 
lant's brief :  "There  can  be  no  valid  location  of  a  mining  claim  in  the 
state  of  Idaho  as  against  the  right  of  adverse  claimants,  except  by 
compliance  with  the  raining  acts  of  Congress  and  of  the  state  of 
Idaho."  Appellant  thereupon  cites  a  number  of  cases  and  enters  into 
a  very  able  argument  in  support  of  the  contention  that,  under  the 
provisions  of  section  2332  of  the  Revised  Statutes  of  the  United 
States  (U.  S.  Comp.  St.  1901,  p.  1433),  a  mining  claim  cannot  be 
held  by  adverse  possession  as  against  another  locator,  even  though 
that  possession  has  continued  during  the  full  period  prescribed  by 
the  statute  of  limitations  for  the  commencement  of  such  actions,  un- 
less such  claimant  has  posted  and  recorded  a  notice  of  location  as 
required  by  law.  Appellant  places  special  reliance  upon  McCowan  v. 
McClay,  16  Mont.  234,  40  Pac.  602,  and  Cleary  v.  Skiffich,  28  Colo. 
362,  65  Pac.  59,  89  Am.  St.  Rep.  207.  Appellant's  contention  is  sup- 
ported by  the  authority  of  the  foregoing  cases,  but  the  great  weight 
of  authoritv  seems  to  be  to  the  contrary.  The  Supreme  Court  of  New 
Mexica  in 'Upton  v.  Santa  Rita  Alining  Co.,  14  N.  M.  96,  89  Pac. 
275,  had  occasion  to  consider  this  question,  and  there  reached  the 
conclusion  which  is  stated  as  follows  by  the  court,  speaking  through 
Mr.  Justice  Pope:  "We  believe  that  the  true  rule  on  the  subject  is 
succinctly  stated  in  Altoona  Co.  v.  Integral  Co.,  114  Cal.  100,  45  Pac. 
1047,  where  it  is  said  that  'working  for  the  statutory  period  before 
the  adverse  right  exists  is  equivalent  to  a  location  under  the  act  of 
Congress,"  and  in  Belk  v.  Meagher,  104  U.  S.  279,  287,  26  L.  Ed. 
735,  where  it  is  declared  to  be  the  'equivalent  of  a  valid  location.' 
In  other  words,  a  party  who  has  done  such  work  occupies  the  status 
and  possesses  the  rights  of  a  locator,  no  more  and  no  less.  As  in 
the  case  of  a  holder  of  a  valid  location,  he  has  good  title  as  against 

18 — Mining  Law 


274  LOCATION    OF    LODE   AND    PLACER    CLAIMS. 

all  but  the  government,  so  long  as  he  does  the  annual  labor.  *  *  * 
When  such  party  comes  to  apply  for  patent,  his  occupancy  must  be 
proven  under  certain  regulations  of  the  department  (2  Lindley, 
1714),  and,  when  so  proved,  if  there  be  no  adverse  claimant,  they  are 
sufficient,  as  the  statute  says,  'to  establish  a  right  to  a  patent.'  But 
in  this  he  stands  on  the  same  basis  as  the  holder  of  a  location  whose 
application  is  uncontested.  The  holder  of  such  a  possession,  no  less 
than  the  holder  of  a  location,  must  possess  the  necessary  qualifica- 
tions as  to  citizenship.  Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419. 
He  must  prove,  as  well  as  the  locator,  the  possession  of  $500  worth 
of  labor  or  improvements  before  he  can  secure  patent.  Capital  No.  5 
Placer  Min.  Claim,  34  Land  Dec.  Dep.  Int.  462,  supra." 

It  will  be  seen  that  the  New  Mexico  court  and  the  authorities 
there  cited  hold  in  substance  that  continuous,  open,  adverse  pos- 
session of  mining  ground  for  the  full  period  required  by  the  lo- 
cal statute  of  limitations,  accompanied  by  an  annual  performance 
of  the  work  or  improvement  on  the  claim  required  by  the  stat- 
ute, obviates  the  necessity  of  making  proof  of  the  posting  and 
the  recording  of  a  location  notice,  and  supplies  the  place  of  rec- 
ord title.  Mr.  Snyder  in  his  work  on  Mines  (volume  i,  §  672), 
in  discussing  the  application  of  section  2332  of  the  Revised  Stat- 
utes of  the  United  States  to  the  statute  of  limitations  and  the 
method  of  acquiring  title  thereby,  says :  "The  effect  of  this  stat- 
ute is  to  relieve  the  applicant  from  the  necessity  of  proving  his  lo- 
cation of  the  claim,  the  location  by  his  predecessors,  or  the  furnish- 
ing of  an  abstract  of  title,  as  in  other  cases,  but  he  is  required  to 
furnish  a  duly  certified  copy  of  the  statute  of  limitations  of  the  state 
or  territory,  together  with  his  own  sworn  statement  showing  the  facts 
as  to  the  origin  of  his  title  and  continuation  of  his  possession  of  the 
ground  applied  for,  the  area  thereof,  the  nature  and  extent  of  the 
work  done,  whether  there  has  been  any  opposition  to  or  litigation  re- 
garding his  possession  of  the  ground,  and,  if  so,  when  the  same 
ceased,  whether  such  cessation  was  the  result  of  compromise  or  ju- 
dicial decree,  and  any  other  facts  bearing  upon  the  question.  *  *  * 
This  provision  relates  solely  to  the  procedure  relative  to  proving 
title.  All  other  steps  in  the  matter  of  application  are  the  same  as  here- 
tofore outlined.  And,  where  an  adverse  claim  is  filed  in  the  land 
office,  the  applicant  is  obliged  to  defend  his  rights  in  a  court  of  com- 
petent jurisdiction,  the  same  as  though  his  application  were  based 
upon  a  valid  location ;  but  upon  the  trial,  as  in  the  land  office,  proof 
of  possession  and  work  for  a  period  equal  to  the  statute  of  limita- 
tions would  be  equivalent  to  a  location.  It  would  seem  that  he  ought 
also  to  furnish  proof  that  the  claim  was  actually  marked  upon  the 
ground  by  him  or  his  predecessors,  and  that  such  markings  corre- 
spond substantially  with  the  description  of  the  claim  as  surveyed  and 
applied  for.  His  status,  however,  if  an  adverse  claim  is  filed,  is  not 
so  clear.   If  the  owner's  boundaries  are  plainly  marked  and  an  actual 


.\DVERSE    POSSESSION.  275 

adverse  possession  maintained,  it  would  seem  to  be  equally  conclu- 
sive against  the  adverse  claimant.  But  that  is  an  independent  fact, 
and  the  adverse  claim  must  rest  upon  its  own  merits.  The  statute 
simply  undertakes  to  dispense  with  many  of  the  formalities  in  the 
way  of  proof  in  the  absense  of  an  adverse  claim."  Mr.  Lindley  in 
volume  2  of  his  work  on  Mines,  at  section  688,  takes  substantially  the 
same  view,  and  in  support  thereof  places  special  reliance  on  the  opin- 
ion of  Judge  Sawyer  in  420  Mining  Co.  v.  Bullion  Mining  Co.,  3 
Sawy.  634,  Fed.  Cas.  No.  4,989,  11  Morr.  Min.  Rep.  608,  9  Nev.  240. 
To  the  same  effect,  see  Harris  v.  Mining  Co.  (C.  C.)  8  Fed.  863,  37 
Land.  Dec.  Dept.  Int.  772,  and  Snyder  on  Mines,  §§  155  and  357. 
It  seems  to  us  that  the  provisions  of  section  2332  of  the  Revised 
Statutes  of  the  United  States  are  intended  to  obviate  the  necessity 
for  proof  of  posting  and  recording  a  notice  of  location  in  cases  where 
the  claimant  to  mineral  ground  has  been  in  the  actual,  open,  and 
exclusive  possession  of  the  ground  for  a  period  equal  to  that  required 
by  the  local  statute  of  limitations  governing  adverse  possession  of 
real  estate.  The  adverse  possession  referred  to  in  the  statute  is  in- 
tended to  supply  the  place  of  an  abstract  of  title  and  such  proofs  as 
are  furnished  by  the  county  recorder. 

[5]  It  still  remains,  however,  for  the  person  who  asserts  claim 
by  adverse  possession  to  have  made  a  mineral  discovery,  and  to  have 
performed  the  annual  assessment  work,  and  to  have  had  the  boun- 
daries of  his  claim  so  marked  and  indicated  as  to  afford  actual  no- 
tice of  the  extent  and  boundaries  of  his  claim  and  possession,  and  to 
have  maintained  an  actual  possession  and  excluded  all  adverse  claim- 
ants for  the  full  period  prescribed  by  the  statute,  and  to  have  likewise 
maintained  his  possession  and  occupancy  during  the  subsequent  pe- 
riod of  time  in  which  the  adverse  locator  attempted  to  initiate  his 
right  by  locating  the  claim. 

■  W^  conclude  that  the  order  vacating  the  judgment  and  setting 
aside  the  default  should  be  affirmed,  and  it  is  so  ordered.  Costs 
awarded  to  respondent.'^" 

"*  ''Appellees  contend  that  the  original  locations  of  the  Bell  and  White  Eagle 
claims  were  void,  because  the  land  covered  thereby  was  not  subject  to  loca- 
tion at  the  time  they  were  made;  E.  C.  Bartlett  and  S.  E.  Williams  having 
previously,  on  the  12th  of  March,  1885,  made  mining  locations,  known  as 
the  Bon  Ton  and  Small  Hope  claims,  on  the  same  land.  The  evidence  indi- 
cates that  Bartlett  and  Williams  had  abandoned  their  claims  when  the  Bell 
and  White  Eagle  claims  were  located.  After  locating  the  Bon  Ton  and  Small 
Hope  claims,  they  never  undertook  to  develop  and  maintain  them.  The  Bell 
and  White  Eagle  claimants  took  possession,  and  held  and  developed  them 
by  work  and  labor  performed,  and  held  adverse  possession  of  the  same  for  a 
longer  time  than  the  period  of  limitation  prescribed  by  statute.  This  was 
sufficient  to  render  their  claim  valid  against  every  one  except  the  United 
States.  Alining  Co.  v.  Willis,  127  U.  S.  471,  8  Sup.  Ct.  1214,  32  L.  Ed.  172; 
Francoeur  v.  Newhouse  (C.  C)  43  Fed.  236;  Four  Hundred  and  Twenty 
Min.  Co.  V.  Bullion  Min.  Co.,  3  Sawy.  634,  Fed.  Cas.  No.  4,989;  Harris  v. 
Mining  Co.  (C.  C.)  3  McCrary,  14,  8  Fed.  863."  Battle,  J.,  in  Buffalo  Zinc  & 
Copper  Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  576,  91  Am.  St.  87. 


h^^  i  '-<  l^f^O-fi^  2^         CHAPTER  V. 


^Q 


THE  LOCATION  OF  TUNNEL  SITES  AND  OF  BLIND  VEINS  IN  TUNNELS. 

\.^  .  FEDERAL  STATUTE. 

*<*^  f 

TUtj^  Sec.  2323.     Where  a  tunnel  is  run  for  the  development  of  a  vein  or  lode, 

or  for  the  discovery  of  mines,  the  owners  of  such  tunnel  shall  have  the  right 
of  possession  of  all  veins  or  lodes  within  three  thousand  feet  from  the  face 
of  such  tunnel  on  the  line  thereof,  not  previously  known  to  exist,  discovered 
^^  '  in  such  tunnel,  to  the  same  extent  as  if  discovered  from  the  surface;  and  loca- 
tions on  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  surface, 
fy  made  by  other  parties  after  the  commencement  of  the  tunnel,  and  while  the 

CS5.<f  same  is  being  prosecuted  with  reasonable  diligence,  shall  be  invalid,  but  failure 
•  to  prosecute  the  work  on  the  tunnel  for  six  months  shall  be  considered  as  an 

^f  abandonment  of  the  right  to  all  undiscovered  veins  on  the  line  of  such  tun- 
'    ^    nel.     Rev.  St.  U.  S.  §  2323. 

"V  tM^  COLORADO  STATUTE. 

*   ]      If  any  person  or  persons  shall  locate  a  tunnel  claim  for  the  purpose  of  dis- 
'■^'V  ^^  covery,  he  shall  record  the  same,  specifying  the  place  of  commencement  and 
^  termination  thereof,  with  the  names  of  the  parties  interested  therein. — Rev. 

^        St.  Colo.,  1908,  §  4207. 

^  0     GENERAL  LAND  OFFICE  RULES  AND  REGULATIONS. 

I  ^  16.  The  effect  of  section  2323,  Revised  Statutes,  is  to  give  the  proprietors 
'^  •  of  a  mining  tunnel  run  in  good  faith  the  possessory  right  to  fifteen  hundred 
P^-u^  ^  feet  of  any  blind  lodes  cut,  discovered,  or  intersected  by  such  tunnel,  which 
^  —-..were  not  previously  known  to  exist,  within  three  thousand  feet  from  the 
'  tij\  [7 face  or  point  of  commencement  of  such  tunnel,  and  to  prohibit  other  parties, 
f^  .  after  the  commencement  of  the  tunnel,  from  prospecting  for  and  making  loca- 
t/"^\  lions  6f  lodes  on  the  line  thereof  and  within  said  distance  of  three  thousand 
\l^,^X    ^^^^'  un'ess  such  lodes  appear  upon  the  surface  or  were  previously  known  to 

exist.     The  term  "face,"  as  used  in  said  section,  is  construed  and  held  to  mean  f 
q^,  >     the  first  working  face  formed  in  the  tunnel,  and  to  signify  the  point  at  which  I  ■^ 

tthe  tunnel  actually  enters  cover;  it  being  from  this  point  that  the  three  thou- 
^         sand  feet  are  to  be  counted  upon  which  prospecting  is  prohibited  as  aforesaid. 
yC  ^  17.    To  avail  themselves  of  the  benefits  of  this  provision  of  law.   the  pro- 

^^  prietors  of  a  mining  tunnel  will  be  required,  at  the  time  they  enter  cover  as 
r^  aforesaid,  to  give  proper  notice  of  their  tunnel  location  by  erecting  a  substan- 
.  tial  post,  board,  or  monument  at  the  face  or  point  of  commencement  thereof, 

pyw^       upon  which  should  be  posted  a  good  and  sufficient  notice,  giving  the  names  of 
J        the  parties  or  company  claiming  the   tunnel    right;    the   actual   or  proposed 
ly^  V      course  or  direction  of  the  tunnel,  the  height  and  width  thereof,  and  the  course 
and  distance  from  such  face  or  point  of  commencement  to  some  permanent 
>>^'      well-known  objects  in  the  vicinity  by  which  to  fix  and  determine  the  locus 


-4 


ADVERSE    POSSESSION.  277 


Vv-vft, 


c/l 


jn  manner  heretofore  set  forth  applicable  to  locations  of  veins  or  lodes,  and  -...  « ^ 

at  the  time  of  posting  such  notice  they  shall,  in  order  that  miners  or  pros-  0  (   *^ 

pectors  may  be  enabled  to  determine  whetlier  or  not  they  are  within  the  lines  M    f.  I 

of  tTie  tunnel,  establish  the  boundary  lines  thereof,  by  stakes  or  monuments  ^^*^i 

ptaTed  along  such  lines  at  proper  intervals,  to  the  terminus  of  the  three  thou-  yx.x^ 
sand  feet  from  the  face  or  point  of  commencement  of  the  tunnel,  and  the  lines 
so  marked  will  define  and  govern  as  to  specific  boundaries  within  which  pros 


A 


pecting  for  lodes  not  previously  known  to  exist  is  prohibited  while  work  on  /  .     t, 

the  tunnel  is  being  prosecuted  with  reasonable  diligence.  '   1/* 

18.    A  full  and  correct  copy  of  such  notice  of  location  defining  the  tunnel  J^jlAj^ 

claim  must  be  filed  for  record  with  the   mining  recorder  of  the  district,  to  V*^^ 

which  notice  must  be   attached  the  sworn   statement  or   declaration   of  the  *"  r"   ^ 

owners,  claimants,  or  projectors  of  such  tunnel,  setting  forth  the  facts  in  the  ^         '^ 

case ;  stating  the  amount  expended  by  themselves  and  their  predecessors  in  .  (^ 

interest  in  prosecuting  work  thereon;  the  extent  of  the  work  performed,  and  ^ 

that  it  is  bona  fide  their  intention  to  prosecute  work  on  the  tunnel  so  located  '   '">^>« 

and  described  with  reasonable  diligence  for  the  development  of  a  vein  or  lode,  ^.  »  ** 

or  for  the  discovery  of  mines,  or  both,  as  the  case  may  be.     This  notice  of  ■^. 

location  must  be  duly  recorded,  and,  with  the  said  sworn  statement  attached,  -^     -. 
kept  on  the  recorder's  files  for  future  reference.     Land  Office  Mining  Regu- 
lations, rules  1(^18.                                              »  »  ^^Va^    fwwv^   y^j^   UJTiJ^-'^*' 

?va»<-M>  /wv.^   tlxJl  *y/»  ^ 

ENTERPRISE  MIN.  CO.  v.  RICO-ASPEN  CONSOL.   li^O  «2i«-' 
MIN.  CO.  ET  AL.       /1v  vv^v;.<ji^,»w<^^  (o,^^b^ 

1897.     Supreme  Court  of  the  United  States.  ^yt»k.««A;  t<Pt- 

167  U.  S.  108,  42  L.  ed,  97,  17  Sup.  Ct.  762.        »    *  ^_ 

On  Writ  of  Certiorari  to  the  United  States  Circuit  Court  of  Ap-  y^^M^a*^ 

peals  for  the  Eighth  Circuit.  'vtn^ 

The  facts  are  these :  ^'  Wfi 

The  Group  tunnel  site  under  which  the  Enterprise  Mining  Com-  y.  .L-j 
pany,  the  defendant  and  appellant,  claims  the  right  to  the  ores  in 

controversy,  was  located  on  July  25,  1887,  and  the  certificate  of  loca-  ^^*~^ 

tion  was  filed  in  the  office  of  the  county  clerk  and  recorder  of  the  ^v>-^ 

county  in  which  the  location  was  made  on  August  29,  1887.  VM^ 

The  Vestal  lode  mining  claim,  under  which  the  plaintiffs    (the  ^(J\, 

appellees)  claim  title,  is  based  upon  a  discovery  made  on  March  23,  ^•^"^ 

1888.     The  claim  was  located  on  April   i,   1888,  and  the  location  f*^"^ 

certificate  was  filed  for  record  on  April  3,  1888.  C"*"^  I 

The  situation  of  the  properties  is  sufficiently  disclosed  by  the  fol-  \ 

lowing  diagram .                        ^  TVM.^ 


iZ  L^'4'U.eJr^'^^^^^    ^  ir<iw.>-s.  i^Jl^    (^Cij^-^-t^    K^\ 


'  278  TUNNEL   SITES    AND   BLIND   VEINS. 


.-'**, ^ 


.*  .,0^* 


V  The  ore  in  controversy  is  within  the  hmits  of  the  tract,  A,  B,  C,  u.^-j 

**^*'**'  As  to  this  tract,  the  two  locations,  the  Vestal  and  Jumbo  No.  2,  con- /l^, 
j^*     flict.    The  owners  of  the  Vestal  claim  made  application  in  1890  for  rr^ 
.  7)j^    a  patent.    No  adverse  proceedings  were  instituted  by  the  defendant,  ""W^ 
>  ^  (    and  a  patent  for  the  claim  was  issued  on  February  6,  1892.    At  the 
p  ^*j     time  of  these  proceedings  no  discovery  of  a  vein  in  the  tunnel  had 
^^JIT'    been  made.    But  on  June  15,  1892,  a  vein  was  discovered  1,920  feet 
Ktif      from  its  portal,  at  the  place  marked  "Discovery"  on  the  diagram. 
Immediately  thereafter  the  defendant  caused  the  boundaries  of  the 
"'*^'"      claim  Jumbo  No.  2  to  be  located  upon  the  surface  of  the  earth,  and 
»^  a  certificate  of  location  to  be  duly  recorded,  in  which  it  claimed  54 

L        feet  along  the  vein  to  the  northeasterly  of  the  tunnel,  and  1,446  feet 
fPl       southwesterly.    The  position  of  this  claim  appears  sufficiently  on  the 
^J-^       diagram.     The  portion  of  this  vein  within  the  limits  of  the  Vestal 
claim  is  about  750  feet  from  the  Hne  of  the  tunnel.     This  suit  was 
commenced  in  the  circuit  court  of  the  United  States  for  the  District 
(y  ^(..     of  Colorado,  on  September  3,  1892,  and  was  decided  by  that  court  in 
^1  favor  of  the  plaintiffs.     53  Fed.  321.     On  appeal  to  the  court  of 

1  ^      appeals  this  decision  was  reversed  (32  U.  S.  App.  75,  13  C.  C.  A. 
390,  ^nd  66  Fed.  200),  and  the  case  remanded  for  further  proceed- 
ings.   Thereupon  the  case  was  brought  here  on  a  writ  of  certiorari. 
xMr.  Justice  Brewer,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 
X-y         It  will  be  observed  that  so  far  as  the  mere  location  of  the  two 
>      claims,  Vestal  and  Jumbo  No.  2,  the  former  was  prior  in  time  to  the 

i-e.  ccM^^  9^<^  Cuvks  (jyi^^»^  ^  ^— fv^  >V^  <^4HW. 
.^  \  iK^  Cjuj^  <^<Aa  W\itkJc  tvy  f^-^cf^^    Uc^ 


■       .  ■  u  •-^ 

latter,  and  would,  if  there  were  no  other  facts,  give  priority  of  right  vA,  |4>* 
>"^      to  the  ore  within  the  limits  of  the  conflicting  territory.     The  tunnel     .  f 
f,  iJ  »^  was,  however,  located  some  eight  or  nine  months  before  the  discov-      "^ 
^  s  ery  and  location  of  the  Vestal  claim,  and  the  statute  gives  to  the  own-  VLtf^ 
■^  ers  of  such  tunnel  the  right  to  "all  veins  or  lodes  within  3,000  feet  .   | 

-^      from  the  face  of  such  tunnel  on  the  line  thereof,  not  previously  t^Tfc-e 
^       known  to  exist."     By  virtue  of  this  section,  therefore,  the  right  of  ^.^jrCj 
0^  the  defendant  to  this  vein  was  prior  to  that  of  the  plaintiffs  to  the    ^        ( 
'       ;  mineral  in  their  claim.     In  this  respect  the  circuit  court  and  the    " 
^       court  of  appeals  agreed.    The  matters  now  in  dispute  are  the  extent       - .  v 
of  that  right  and  the  efifect  of  a  failure  to  "adverse"  the  application    v        h 
for  a  patent. 

The  right  to  this  vein  discovered  in  the  tunnel  is  by  the  statute 
declared  to  be  "to  the  same  extent  as  if  discovered  from  the  sur-   "  #  ^  , 
face."    If  discovered  from  the  surface,  the  discoverer  might,  under      ¥ 
y  Rev.  St.  §  2320,  claim  ''one  thousand  five  hundred  feet  in  length   ^/^^ 

along  the  vein  or  lode."    The  clear  import  of  the  language,  then,  is  ^«„^ 
^^      to  give  to  the  tunnel  owner,  discovering  a  vein  in  the  tunnel,  a  right  « 

j^.  (/to  appropriate  1,500  feet  in  length  of  that  vein.    When  must  he  indi-    ^  *^'^ 
j    t     cate  the  particular   1,500  feet  which  he  desires  to  claim?     Counsel 
^  for  plaintiffs  contend  that  it  should  be  done  when,  in  the  first  in-   /" 

stance,  the  tunnel  is  located,  and  that,  if  no  specification  is  then  j'*'^*-*'*' 
"  made,  the  line  of  the  tunnel  is  to  be  taken  as  dividing  the  extent  ofc*^!^ 

the  claim  to  the  vein,  so  that  the  tunnel  owner  would  be  entitled  to         ^ 
only  750  feet  on  either  side  of  the  tunnel ;  while  counsel  for  defend-  i  vt  Wt 
ant  insist  that  he  need  not  do  so  until  the  actual  discovery  of  the  ^C^  % 
vein  in  the  tunnel.    We  think  the  defendant's  counsel  are  right.     In  j;;      a  . 
order  to  make  a  location,  there  must  be  a  discovery;  at  least,  that?'*'W' 
is  the  general  rule  laid  down  in  the  statute.     Section  2320  provides  :J,.  v,  ^^ 
"But  no  location  of  a  mining  claim  shall  be  made  until  the  discovery'  ^ 
of  the  vein  or  lode  within  the  limits  of  the  claim  located."    The  dis-  V'^-^. 
covfery  in  the  tunnel  is  like  a  discovery  on  the  surface.    Until  one  is  k>H«^t 
made,  there  is  no  right  to  locate  a  claim  in  respect  to  the  vein,  and  f" 
the  time  to  determine  where  and  how  it  shall  be  located  arises  onlyT^-*-**^ 
upon  the  discovery, — whether  such  discovery  be  made  on  the  sur-  f^  tJ^ 
face  or  in  the  tunnel.    The  case  of  Erhardt  v.  Boaro,  113  U.  S.  527,  ^' «-i^ 
5   Sup.  Ct.   560,  is  not  in  point,  for  there  the  preliminary  notice,    '^ » 
which  was  made  upon  a  discovery  from  the  surface,  simply  claimed  *^jftjkfii6 
"1,500  feet  on  this  mineral  bearing  lode,"  without  further  specifica- »  ^^. 
tion  as  to  boundaries  or  direction ;  and  it  was  held  that  that  was  '•"w^K 
equivalent  to  a  claim  for  750  feet  in  each  direction  from  the  discov-  |r»%»%<< 


ery  shaft.  _  ^  Ih 

It  may  be  true,  as  counsel  claim,  that  this  construction  of  the  stat-  '  '  « 
ute  gives  the  tunnel  excavator  same  advantages.     Surely,  it  is  not  '.■K^^Jf' 
strange  that  congress  deemed  it  wise  to  offer  some  inducements  for        ^ 
running  a  tunnel  into  the  side  of  a  mountain.    At  the  same  time,  it         ^ 

/kA:(-^v.w^  ^AJ'^UIX^  j-rr'€v-wj   t^' ■' 


**•"*"       2X0  '  TTINNEL    SITES    AND    TiT.TNT)    VF.TMS^  '^''^-^         ^ 


^A>-r-^  (X^cM 


280  "^         TUNNEL   SITES   AND   BLINDVEINS. 

,  ,  placed  specific  limitations  on  the  rights  which  the  tunnel  owner 
P'}^"*  could  acquire.  He  could  acquire  no  veins  which  had  theretofore 
trtJP  been  discovered  from  the  surface.  His  right  reached  only  to  "blind 
\  veins,"  as  they  may  be  called, — veins  not  known  to  exist,  and  not 
"^^  discovered  from  the  surface  before  he  commenced  his  tunnel.  It 
Ji^'f  S  /  required  reasonable  diligence  in  the  prosecution  of  his  work.^  It 
^^(  placed  a  limit  in  length  (3,000  feet)  beyond  which  he  might  not  go 
^^  ,,  in  his  search  for  veins,  and  acquire  any  right  under  his  tunnel  loca- 
Li-O^  tion,  and  the  veins  to  which  he  might  acquire  any  rights  were  those 
'  which  the  tunnel  itself  crossed.  Such  is  the  import  of  the  letter  to 
v.inr^  which  counsel  refer,  from  Commissioner  Drummond,  of  date  Sep- 
^  tember  20,  1872.  Land  Office  Report,  1872,  p.  60 ;  3  Copp's  Land 
•" '  ^  Owner,  130.  It  may  be  also  noticed  that  in  this  letter  the  commis- 
\  4^      sioner  affirmed  the  right  of  location  on  either  side  of  the  tunnel,  in 

^       these  words :  "When  a  lode  is  struck  or  discovered  for  the  first 
time  by  running  a  tunnel,  the  tunnel  owners  have  the  option  of 
j,^      recording  their  claim  of  fifteen  hundred  feet  all  on  one  side  of  the 

^  'In  Fissure  Min.   Co.  v.  Old  Susan   Min.  Co.,  22  Utah  438,  63   Pac.  587, 

>    \         Miner,  J.,  for  the  court,  said  : 

""^  "Under  section  2323,  a  failure  to  prosecute  the  work  on  the  tunnel  for  six 

months  is  considered  an  abandonment  of  the  right  to  all  undiscovered  veins 
*^,  on  the  line  of  such  tunnel.  Because  of  this  the  court  properly  found  that  the 
#s.  «  respondent  was  not  entitled  to  the  blind  vein  discovered  under  the  tunnel, 
(P  called  the  'Calumet  No.  1,'  and  was  only  entitled  to  the  bore  of  the  General 
ft  Sheridan  tunnel  site,  and  to  a  space  of  surface  ground  50  feet  on  each  side  of 

^    <,       the  mouth  of  the  tunnel,  and  100  feet  extending  in  front  thereof  for  dumping 
-V   M     purposes.     The  balance  of  the  claim  on  which  the  mouth  of  the  tunnel  is  lo- 
cated was  awarded  to  the  appellant.     We  are  of  the  opinion  that  this  finding 
.jS^^is  sustained  by  the  testimony." 

The  distinction  between  the  right,  on  the  one  hand,  to  the  blind  veins  and 

'    the  right,  on  the  other  hand,  to  the  bore  of  the  tunnel  and  to  its  further 

projection  is  emphasized  in  the  following  passage  from   Morrison's   Mining 

Rights,  14  Ed.,  296 :_     _ 

»    ^  r  ,     "The  A.  C.  expressly  limits  the  claim  of  a  tunnel  site  to  lodes  not  known 

^    *    to  exist  within  3,000  feet  from  the  face  of  such  tunnel.     Attempts  have  been 

I    «^    made  to  evade  this  limitation  by  filing  records  of  a  second  tunnel  to  begin 

^M.^    3|-  g  point  3,000  feet  in  from  the  mouth  of  the  tunnel  projected  from  the  sur- 

^        face,  i.  e.,  to  begin  at  the  end  of  the  first  3,000  feet,  taking  3,000  feet  more 

*  /w       and  even  third  and  fourth  extensions  have  been  so  recorded. 

I      ^       "We  regard  these  locations  as  absolutely  void.     But  we  draw  the  distinction 

jrv  p  between  the  right  of  a  tunnel  to  undiscovered  lodes  and  its   right  to  bore 

/'  through  the  mountain.     The  former  is  granted  by  act  of  congress,  is  limited 

\£it      by  its  terms,  and  cannot  be  enlarged.     The  latter,  the  right  to  bore,  is  a  mere 

J      easement,  exercised  under  district  rules  before  the  act,  and  there  is  no  limita- 

%r  ^    tion  on  the  claim  of  a  tunnel  to  drive  itself  through  the  public  domain  as 

far  as  its  owners  may  desire  to  penetrate. 

^  "A  tunnel  in  its  record,  therefore,  in  our  opinion,  can  claim  a  right  of  way 

•-       to  drive  to  any  expressed  number  of  feet,  but  it  cannot  claim  the  statutory 

tunnel  right  to  blind  lodes  beyond  the  first  3,000  feet;  and  the  location  of  a 

second  tunnel  from  the  breast  of  the  first  is  an  attempt  by  a  self-serving  act 

■■M  *       to  take  from  the  prospector's  right  in  the  ground  beyond  3,000  feet,  a  valuable 

t^^.\    privil^e,  which  the  Act  of  Congress  has  given  him." 


LOC^ 


point  of  discovery  or  intersection,  or  partly  on  one  and  partly  upon       / 
the  other  side  thereof."  "X  ^/ 

We  hold,  therefore,  that  the  right  to  a  vein  discovered  in  the 
tunnel  dates,  by  relation,  back  to  the  time  of  the  location  of  the  ^i^^^^; 
tunnel  site,  and  also  that  the  right  of  locating  the  claim  to  the  vein   ^aj>s^ 
arises  upon  its  discover}^  in     the  tunnel,  and  may  be  exercised  by    j 
locating  that  claim  the  full  length  of   1,500  feet  on  either  side  of  ^^^^^^^^>^ 
the  tunnel,  or  in  such  proportion  thereof  on  either  side  as  the  lo-   V\Vi,^>A 
cator  may  desire.  v    / 

It  was  well  said  by  the  court  of  appeals  in  its  opinion  in  this  W  L»J  , 
case:     "The   striking  characteristic  of  this   section  of  the   act  is   li^  'T' 
that  it  gives  the  right  to  the  possession  of  certain  veins  or  lodes  to    - ''^*^''^ 
the  diligent  owner  of  a  tunnel  before  his  discovery  or  location  of  j*.^^'- 
any  lode  or  vein  whatever,  contingent  only  upon  his  subsequent  dis-  ^ 
covery  of  such  veins  in  his  tunnel.     Veins  or  lodes  discovered  on  Tt"'"^^ 
the  surface  or  exposed  by  shafts  from  the  surface  must  be  found    '  *  .   ...\ 
before  any  right  to    them  vests   (sections  2,  5,  Act  May  10,  1872; 
sections  2320,  2324,  Rev.  St.)  ;  but  this  section  declares  that  the 
owners  of  a  tunnel,  by  simply  locating  and  diligently  prosecuting  it, 
without  the  discovery  of  any  vein  or  lode  whatever,   'shall  have 
the  right  of  possession  of  all  veins  or  lodes  within  three  thousand  f    ^      ^ 
feet  from  the  face  of  such  tunnel  on  the  line  thereof,  not  previously  ^  ^7 
known  to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if 
discovered  from  the  surface.'  "'  x  ,-. 

In  Mining  Co.  v.  Brown,  ii  Mont.  370,  383,  28  Pac.  732,  735,  -     ^' 
the  supreme  court  of  that  state  observed:     "But  has  he  [the  tunnel    '•    ' 
owner]    not  an  inchoate  right  in  such  veins,  which  right  is  kept  ♦ 
alive  by  prosecution  of  work  on  the  tunnel,  according  to  law  ?     This 
seems  to  be  implied  by  the  last  clause  of  the  statute,  that  'failure  to  "    - 

prosecute  the  work  on  the  tunnel  for  six  months  shall  be  consid-  fi.o\^v^ 
ered  as  an  abandonment  of  the  right  to  all  undiscovered  veins  on  ^j)  * 
the  line  of  the  tunnel."  The  fact  that  said  nonaction  on  the  part  of  ^-"^^'^^^'^■'^'^ 
the  tunnel  claimant  should  constitute  an  abandonment  shows  that  it  ^'"'^^  u 
was  the  intent  of  congress  to  reserve  such  lodes  from  the  commence-  K>^^  ( 
ment  of  the  tunnel,  while  it  was  prosecuted  according  to  law."  See,  ^"^z 
also,  Back  v.  Mining  Co.,  2  Idaho,  386,  17  Pac.  83.  C<Xna.  L 

The  plaintiffs   further  contend  that  an  act  passed  by  the  terri-  ^IaJlV  {. 
toral  legislature  of  Colorado  in  1861    (Sess.  Laws  Colo.   1861,  p.i        kv 
166;  Mills'  Ann.  St.  §  3 141)   limits  the  right  of  the  tunnel  owner ^^  ^"^ 
to  veins  discovered  in  the  tunnel  to  250  feet  on  each  side  of  the^^-^^  e<.^ 
tunnel.    That  section  reads  :  t>«.*»lAjv. 

"Any  person  or  persons  engaged  in  working  a  tunnel,  within  the  j^>^    1 
provisions  of  this  chapter,  shall  be  entitled  to  two  hundred  and  fifty  ^''^^^ 
feet  each  way  from  said  tunnel,  on  each  lode  so  discovered."  V^-^^   * 

But,  if  that  section  has  not  been  in  terms  repealed  by  the  legis-  <r--/v//>  c 
lature  of  Colorado,  it  was  superseded  by  the  legislation  of  congress,  ^''i 

U>^  ^.^^^v^    ^^O^  ^e-^>^  K^/^-^ft<-h.^ 


282  TUNNEL   SITES    AND    BLIND   VEINS. 

as  found  in  the  Revised  Statutes.  Ellet  v.  Campbell,  i8  Colo.  510, 
33  Pac.  521.  ^ 

The  remaining  question  is  whether  the  failure  to  "adverse  '  the 
application  for  a  patent  for  the  Vestal  claim  destroyed  or  impaired 
the  rights  of  the  defendant.  We  think  not.  Sections  2325  and 
2326,  Rev.  St.,  contain  the  legislation  in  reference  to  adverse  claims. 
These  provisions  are  substantially  that  when  a  party  makes  his  ap- 
plication for  a  patent,  if  no  adverse  claim  is  filed  within  60  days 
from  publication  of  notice,  it  shall  be  assumed  that  the  applicant  is 
entitled  to  a  patent ;  that,  when  an  adverse  claim  is  filed,  "it  shall 
be  upon  oath  of  the  person  or  persons  making  the  same,  and  shall 
show  the  nature,  boundaries,  and  extent  of  such  adverse  claims, 
and  all  proceedings  *  *  *  shall  be  stayed  until  the  controversy 
shall  have  been  settled  or  decided  by  a  court  of  competent  jurisdic- 
tion, or  the  adverse  claim  waived.  It  shall  be  the  duty  of  the  ad- 
verse claimant,  within  thirty  days  after  filing  his  claim,  to  com- 
mence proceedings  in  a  court  of  competent  jurisdiction,  to  deter- 
mine the  question  of  the  right  of  possession,  and  prosecute  the  same 
with  reasonable  diligence  to  final  judgment;  and  a  failure  so  to  do 
shall  be  a  waiver  of  his  adverse  claim." 

Now,  at  the  time  the  application  for  patent  to  the  Vestal  claim 
was  presented  and  the  proceedings  had  thereon,  the  defendant  knew 
of  no  vein  which  would  enable  it  to  dispute  the  right  of  the  owners 
of  the  Vestal  to  a  patent.  The  Vestal  claim,  it  will  be  perceived, 
runs  paralled  to  the  line  of  the  tunnel,  and  is  distant  therefrom 
some  500  feet.  The  presumption,  of  course,  would  be  that  the 
vein  ran  lengthwise,  and  not  crosswise,  of  the  claim,  as  located,  and 
such  a  vein  would  not,  unless  it  radically  changed  its  course,  cross 
the  line  of  the  tunnel.  Whether  it  did  or  not,  or  whether  any  other 
vein  should  be  found  in  the  tunnel  which  should  cross  the  terri- 
tory of  the  Vestal,  was  a  matter  of  pure  speculation ;  and  there 
would  be  no  propriety  in  maintaining  a  suit  to  establish  defend- 
ant's inchoate  right,  and  delay  the  Vestal  claimants  in  securing  a 
patent  on  mere  possibility,  which  might  never  ripen  into  a  fact. 
The  obvious  contemplation  of  the  law  in  respect  to  these  adverse 
proceedings  is  that  there  shall  be  a  present,  tangible,  and  certain 
right,  and  not  a  mere  possibility.  Of  course,  the  owners  of  the 
Vestal  claim  had  notice,  from  the  fact  of  the  location  of  the  tunnel 
line,  of  the  possibilities  which  future  excavations  of  the  tunnel 
might  develop,  and  so  they  were  not  prejudiced  by  the  failure  to 
"adverse."  And  as  the  defendant  could  not,  in  any  suit  which  it 
might  institute,  establish  a  certain  adverse  right,  and  as  litigation  in 
the  courts  is  based  upon  facts,  and  not  upon  possibilities,  it  seems 
to  us  that  nothing  was  to  be  gained  by  instituting  adverse  proceed- 
ings, and  therefore  nothing  lost  by  a  failure  so  to  do. 


LOCATION.  2S3 

These  are  all  the  questions  in  the  case.     We  are  of  opinion  that 
the  decision  of  the  court  of  appeals  is  right,  and  it  is  affirmed. 


CAMPBELL  V.  ELLET. 

1897.     Supreme  Court  of  the  United  States. 
167  U.  S.  116,  42  L.  ed.  loi,  17  Sup.  Ct.  765. 

In  Error  to  the  Supreme  Court  of  the  State  of  Colorado. 

On  September  18,  1872,  George  C.  Corning  and  other  citizens  of 
the  United  States  located  a  tunnel  site.  They  diligently  prosecutea 
the  work  of  excavation,  expending  therein  $100,000. 

On  February  3,  1875,  the  Corning  Tunnel  Company,  a  corpora- 
tion duly  organized,  was  the  owner  of  this  tunnel  location  by  sun- 
dry mesne  conveyances  from  the  locators  thereof ;  and  said  tunnel 
company,  while  prosecuting  the  work  of  excavation,  cut  and  dis- 
covered within  the  tunnel,  and  upon  the  line  thereof,  at  a  distance 
of  594  feet  from  its  face,  a  vein  of  mineral  bearing  rock  in  place, 
which  was  named  the  Bonanza  lode  :  and  on  said  February  3d  it 
posted  at  the  face  of  the  tunnel  a  plain  sign  and  notice,  giving  the 
name  of  said  vein,  the  point  of  discovery  within  the  tunnel,  the 
general  course  of  the  vein  from  the  point  of  discovery,  and  claim- 
ing 750  feet  of  said  vein  on  each  side  of  the  line  of  the  tunnel. 
This  Bonanza  lode  did  not  appear  upon  the  surface  of  the  ground, 
and  was  not  known  to  exist  prior  to  its  discovery  by  the  Corning 
Tunnel  Company,  as  above  stated. 

On  February  9,  1875.  the  tunnel  company  filed  and  caused  to  be 
recorded  in  the  office  of  the  clerk  and  recorder  of  the  county  of 
Boul(^er  a  location  certificate  of  said  Bonanza  lode,  giving  the  name 
of  the  lode  so  discovered,  and  the  company  as  the  locator  thereof, 
the  point  in  the  line  of  the  tunnel  at  which  the  lode  was  discovered, 
and  claiming  750  feet  of  the  vein  upon  each  side  thereof ;  also  stat- 
ing the  general  course  of  the  vein.  The  location  certificate  was  as 
follows : 

"Territory  of  Colorado,  County  of  Boulder.  Know  all  men  by 
these  presents,  that  we,  the  Corning  Tunnel  Company,  claim,  by 
right  of  discovery  and  by  right  of  location,  1,500  feet,  linear  and 
horizontal  measurement,  on  the  Bonanza  lode,  along  the  vein  there- 
of, with  all  its  dips,  variations,  and  angles,  together  with  the 
amount  of  surface  necessary  for  working  the  same,  and  allowed  by 
law ;  750  feet  of  said  lode  so  located  lying  and  being  easterly  of 
the  discovery  on  said  lode,  and  750  feet  being  westerly  of  said 
discovery,  said  lode  being  more  particularly  described  as  follows. 


284  TUNNEL    SITES    AND   BLIND   VEINS. 

to  wit :  Beginning  at  a  point  in  the  Corning  tunnel  594  feet  from 
the  face  of  said  tunnel,  and  extending  from  said  point  750  feet  east- 
erly and  750  feet  westerly.  The  bearing  of  said  lode  is  about  north 
y^  degrees  east.  This  lode  was  discovered  in  the  Corning  tunnel, 
and  it  is  claimed  under  the  provisions  of  section  4  of  an  act  of 
congress  approved  May  10,  1872,  in  Gold  Hill  mining  district.  Said 
lode  was  discovered  and  was  located  on  the  3d  day  of  February,  A. 
D.  1875.  [Signed]  Frederick  A.  Squires,  Pres.  Daniel  A.  Robin- 
son, Secy." 

Subsequently,  the  title  to  the  tunnel  and  the  lode  passed  to  the 
defendant  in  error.  After  the  discovery  of  said  Bonanza  lode,  the 
owners  of  the  tunnel  continuously  and  diligently  prosecuted  the 
work  on  the  lode,  and  expended  each  year  thereon  the  sum  of  $100. 
On  July  10,  1886,  more  than  11  years  after  the  discovery  of  the 
Bonanza  lode,  the  plaintiff  in  error,  Campbell,  and  one  Cyrus  Tay- 
lor, with  full  knowledge  of  the  tunnel  claim  and  of  the  discovery  and 
location  of  the  Bonanza  lode  aforesaid,  made  a  location  of  a  cer- 
tain lode,  called  by  them  the  J.  L.  Sanderson  lode.  This  location 
is  on  the  same  lode  and  vein  as  that  described  in  the  Bonanza  loca- 
tion, and  the  discovery  cut  by  which  it  was  discovered  by  Camp- 
bell and  Taylor  is  within  200  feet  of  the  tunnel  line.  Campbell  and 
Taylor  did  everything  required  to  be  done  by  the  statutes  of  the 
United  States  in  discovering  and  marking  the  point  of  discovery  of 
the  Sanderson  lode,  and  in  marking  the  boundaries  of  the  claim  on 
the  surface  of  the  ground,  and  thereafter  did  the  requisite  annual 
labor  thereon.  Having  made  application  for  a  patent,  the  defend- 
ant in  error  filed  an  adverse  claim,  and  commenced  a  suit,  as  re- 
quired by  the  statute.  Rev.  St.  §  2326.  This,  after  a  trial  in  the 
district  court  of  Boulder  county,  Colo.,  was  taken  to  the  supreme 
court  of  the  state,  and  by  that  court  a  judgment  was  entered  in 
favor  of  the  defendant  in  error,  on  the  ground  that  the  proceedings 
in  respect  to  the  tunnel,  the  discovery  of  the  Bonanza  lode,  and  the 
location  thereof,  vested  in  him  a  title  to  that  lode  to  the  distance  of 
750  feet  from  the  line  of  the  tunnel  (18  Colo.  510,  33  Pac.  521),  to 
reverse  which  judgment,  Campbell  sued  out  this  writ  of  error. 

Mr.  Justice  Brewer,  after  stating  the  facts  in  the  foregoing 
language,  delivered  the  opinion  of  the  court. 

In  the  case  just  decided,  of  Enterprise  Alin.  Co.  v.  Rico- Aspen 
Consol.  Min.  Co.,  17  Sup.  Ct.  762,  we  have  considered  the  law  in 
respect  to  mining  tunnels.  Beyond  what  was  there  disposed  of, 
only  a  single  question  requires  consideration,  and  that  is,  does  the 
failure  to  mark  on  the  surface  of  the  ground  the  point  of  discovery 
and  the  boundaries  of  the  tract  claimed  destroy  the  right  of  the 
tunnel  owner  to  the  veins  he  has  discovered  in  the  tunnel  ? 

It  will  be  noticed  that  the  tunnel  company  posted  at  the  mouth 


LOCATIOX.  2S5 

of  the  tunnel  a  notice  of  its  discovery  of  this  lode,  and  the  extent 
of  its  claims  thereon,  and  also  that  it  caused  to  be  filed  in  the  office 
of  the  recorder  of  the  county  a  location  certificate,  as  required  by  the 
local  statute.  Mills'  Ann.  St.  §§  3150,  315 1.  It  will  also  be  per- 
ceived that  section  2323,  Rev.  St.,  gives  to  the  tunnel  discoverer 
the  right  of  possession  of  the  veins.  It  in  terms  prescribes  no  con- 
ditions other  than  discovery.  The  words  "to  the  same  extent"  ob- 
viously refer  to  the  length  along  the  line  of  the  lode  or  vein.  Such 
is  the  natural  and  ordinary  meaning  of  the  words  and  there  is 
nothing  in  the  context  or  in  the  circumstances  to  justify  a  broader 
and  different  meaning.  Indeed,  the  conditions  surrounding  a  vein 
or  lode  discovered  in  a  tunnel  are  such  as  to  make  against  the  idea 
or  necessity  of  a  surface  location.  We  do  not  mean  to  say  that 
there  is  any  impropriety  in  such  a  location,  the  locator  marking  the 
point  of  discovery  on  the  surface  at  the  summit  of  a  line  drawn 
perpendicularly  from  the  place  of  discovery  in  the  tunnel,  and 
about  that  point  locating  the  lines  of  his  claim  in  accordance  with 
other  provisions  of  the  statute.  It  may  be  true,  as  suggested  in 
jMorrison's  Mining  Rights  (8th  Ed.  p.  182),  that,  before  a  patent 
can  be  secured,  there  must  be  a  surface  location.  Rev.  St.  §  2325. 
But  the  patent  is  not  simply  a  grant  of  the  vein,  for,  as  stated  in 
the  section,  "a  patent  for  any  land  claimed  and  located  for  valuable 
deposits  may  be  obtained  in  the  following  manner."  It  must  also  be 
noticed  that  section  2322,  in  respect  to  locators,  gives  them  the  ex- 
clusive right  of  possession  and  enjoyment  of  all  the  surface  within 
the  lines  of  their  locations,  and  all  veins,  lodes,  and  ledges  the  tops 
or  apexes  of  which  are  inside  such  lines.  So  that  a  location  gives 
to  the  locator  something  more  than  the  right  to  the  vein,  which  is 
the  occasion  of  the  location.  But,  without  determining  what  would 
be  the  rights  acquired  under  a  surface  location  based  upon  a  dis- 
covery in  a  tunnel,  it  is  enough  to  hold,  following  the  plain  lan- 
guage' of  the  statute,  that  the  discovery  of  the  vein  in  a  tunnel,  work- 
ed according  to  the  provisions  of  the  statute,  gives  a  right  to  the 
possession  of  the  vein  to  the  same  length  as  if  discovered  from  the 
surface,  and  that  a  location  on  the  surface  is  not  essential  to  a  con- 
tinuance of  that  right.  We  do  not  mean  to  hold  that  such  right  of 
possession  can  be  maintained  without  compliance  with  the  provi- 
sions of  the  local  statutes  in  reference  to  the  record  of  the  claim,  or 
without  posting  in  some  suitable  place,  conveniently  near  to  the 
place  of  discovery,  a  proper  notice  of  the  extent  of  the  claim, — in 
other  words,  without  any  practical  location ;  for  in  this  case  notice 
was  posted  at  the  mouth  of  the  tunnel,  and  no  more  suitable  place 
can  be  suggested,  and  a  proper  notice  was  put  on  record  in  the 
office  named  in  the  statute. 

We  are  of  opinion,  therefore,  that  the  question  considered  must 


286  TUNNEL   SITES    AND    BLIND   VEINS. 

be  answered  in  the  negative.    There  is  no  error  in  the  judgment  of 
the  supreme  court  of  Colorado,  and  it  is  affirmed. 


CALHOUN  GOLD  MINING  COMPANY  v.  AJAX  GOLD 
MINING  COMPANY. 

1901.     Supreme  Court  of  the  United  States. 
182  U.  S.  499,  45  L.  ed.  1200,  21  Sup.  Ct.  885. 

In  error  to  the  Supreme  Court  of  the  State  of  Colorado  to  re- 
view a  decision  affirming  a  judgment  in  an  action  for  trespass  on 
mining  claims.    Affirmed. 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court : 

This  action  was  brought  in  one  of  the  district  courts  of  the  state 
of  Colorado  by  the  defendant  in  error  to  recover  damages  from 
plaintiff  in  error  for  certain  trespasses  on,  and  to  restrain  it  from 
removing  ore  from  ground  claimed  to  be  within  the  boundaries  of, 
the  mining  claims  of  defendant  in  error.  The  answer  of  plaintiff 
in  error  justified  the  trespasses  and  asserted  a  right  to  the  ore  by 
reason  of  the  ownership  of  another  mining  claim  and  the  ownership 
of  a  certain  tunnel  site. 

The  rights  of  the  parties  are  based  on,  and  their  determination 
hence  involves  the  construction  of,  the  following  sections  of  the 
Revised  Statutes  of  the  United  States,  empowering  the  location  of 
mining  claims : 

"Sec.  2322.  The  locators  of  all  mining  locations  heretofore  made, 
or  which  shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or 
ledge  situated  on  the  public  domain,  their  heirs  and  assigns,  where 
no  adverse  claim  exists  on  the  tenth  day  of  May,  eighteen  hundred 
and  seventy-two,  so  long  as  they  comply  with  the  laws  of  the 
United  States,  and  with  the  state,  territorial,  and  local  regulations 
not  in  conflict  with  the  laws  of  the  United  States  governing  their 
possessory  title  shall  have  the  exclusive  right  of  possession  and 
enjoyment  of  all  the  surface  included  within  the  lines  of  their  loca- 
tions, and  of  all  veins,  lodes,  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines 
extended  downward  vertically,  although  such  veins,  lodes,  or  ledges 
may  so  far  depart  from  a  perpendicular  in  their  course  downward 
as  to  extend  outside  the  vertical  side  lines  of  such  surface  locations. 
But  their  right  of  possession  to  such  outside  parts  of  such  veins 
or  ledges  shall  be  confined  to  such  portions  thereof  as  lie  be- 
tween vertical  planes  drawn  downward  as  above  described,  through 
the  end  lines  of  their  locations,  so  continued  in  their  own  direction 
that  such  planes  will  intersect  such  exterior  parts  of  such  veins  or 


LOCATION.  287 

ledges.  And  nothing  in  this  section  shall  authorize  the  locator  or  pos- 
sessor of  a  vein  or  lode  which  extends  in  its  downward  course  beyond 
the  vertical  lines  of  his  claim  to  enter  upon  the  surface  of  a  claim 
owned  or  possessed  by  another. 

"Sec.  2323.  Where  a  tunnel  is  run  for  the  development  of  a  vein 
or  lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tunnel 
shall  have  the  right  of  possession  of  all  veins  or  lodes  within  three 
thousand  feet  from  the  face  of  such  tunnel  on  the  line  thereof,  not 
previously  known  to  exist,  discovered  in  such  tunnel,  to  the  same 
extent  as  if  discovered  from  the  surface ;  and  locations  on  the 
line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  surface 
made  by  other  parties  after  the  commencement  of  the  tunnel,  and 
while  the  same  is  being  prosecuted  with  reasonable  diligence,  shall  be 
invalid ;  but  failure  to  prosecute  the  work  of  the  tunnel  for  six 
months  shall  be  considered  as  an  abandonment  of  the  right  to  all 
undiscovered  veins  on  the  line  of  such  tunnel." 

"Sec.  2336.  Where  two  or  more  veins  intersect  or  cross  each 
other,  priority  of  title  shall  govern,  and  such  prior  location  shall 
be  entitled  to  all  ore  or  mineral  contained  within  the  space  of  inter- 
section ;  but  the  subsequent  location  shall  have  the  right  of  way 
through  the  space  of  intersection  for  the  purposes  of  the  convenient 
working  of  the  mine.  And  where  two  or  more  veins  unite,  the  oldest 
or  prior  location  shall  take  the  vein  below  the  point  of  union,  in- 
cluding all  the  space  of  intersection." 

The  especial  controversy  is  whether  the  rights  conferred  by  § 
2322  are  subject  to  the  right  of  way  expressed  in  §  2323,  and  limit- 
ed by  §  2336.  Or,  in  other  words,  as  to  the  latter  section,  whether 
by  giving  to  the  oldest  or  prior  location,  where  veins  unite,  "all  ore 
or  mineral  contained  within  the  space  of  intersection,"  and  "the 
vein  below  the  point  of  union,"  the  prior  location  takes  no  more, 
notwithstanding  that  §  2322  gives  to  such  prior  location  "the  ex- 
clusive right  of  possession  and  enjoyment  of  all  the  surface  in- 
cluded wathin  the  lines"  of  the  location,  "and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface  lines  extended  downward  vertically." 

The  defendant  in  error  denied  such  effect  to  §§  2323  and  2336, 
and  brought  this  suit,  as  we  have  said,  against  plaintiff  in  error 
for  damages  and  to  restrain  plaintiff  in  error  from  removing  ore 
claimed  to  be  within  the  boundaries  of  the  claims  of  defendant  in 
error,  to  which  ore  defendant  in  error  claimed  to  be  entitled  by 
virtue  of  §  2322.  The  judgment  of  the  lower  court  sustained  the 
claim  of  the  defendant  in  error,  and  damages  were  awarded  it, 
and  the  plaintiff  in  error  was  enjoined  from  further  prosecuting 
work.  An  appeal  was  taken  to  the  supreme  court  of  the  state,  and 
the  judgment  was  affirmed.  Thereupon  this  writ  of  error  was  al- 
lowed. 


288  TUNNEL    SITES    AND    BLIND   VEINS. 

The  annexed  plat  exhibits  the  relative  location  of  the  respective 
properties  of  the  parties.  The  Champion  location  was  dropped 
from  the  case.  There  is  no  controversy  as  to  the  validity  of  the  re- 
spective locations,  none  as  to  the  tunnel  site  or  of  the  steps  neces- 
sary to  preserve  it.  Indeed,  the  facts  are  all  stipulated,  and  that 
the  respective  locations  are  evidenced  by  patents,  the  defendant  in 
error  being-  the  owner  of  the  Monarch  and  the  Mammoth  Pearl, 
and  the  plaintiff  in  error  the  owner  of  the  Victor  Consolidated  and 
the  tunnel  site.  The  facts  are  stated  by  the  supreme  court  of  the 
state  as  follows : 

"That  each  of  appellee's  claims  was  located  prior  to  either  the 
lode  claim  or  tunnel  site  of  appellant ;  that  the  receiver's  receipt  on 
each  of  the  claims  of  appellee  issued  prior  to  the  location  of  the 
tunnel  site  and  prior  to  the  issuance  of  receiver's  receipt  on  the 
Victor  Consolidated ;  that  the  patents  upon  the  lode  claims  of  ap- 
pellee issued  prior  to  the  patent  on  the  lode  claim  of  appellant ; 
that  the  patent  to  the  apex  issued  prior  to  the  location  of  the 
tunnel  site  and  on  the  Mammoth  Pearl  and  Monarch  subsequent 
to  such  location ;  that  the  vein  of  the  Victor  Consolidated  was 
discovered  and  located  from  the  surface,  was  not  known  to  exist 
prior  to  such  discovery,  extends  throughout  the  entire  length 
of  that  claim,  and  on  its  strike  crosses  each  of  the  veins  in  the 
claims  of  appellee  upon  which  they  were  respectively  discovered  and 
located ;  that  the  tunnel  cuts  numerous  blind  veins  underneath  the 
surface  of  the  claims  of  appellee,  which  do  not  appear  upon  the 
surface  and  were  not  known  to  ejcist  prior  to  the  location  of  the 
tunnel ;  that  the  vein  of  the  Victor  Consolidated  was  cut  in  this 
tunnel  underneath  the  claims  of  appellee  and  ore  of  the  value  oi 
$400  removed  therefrom.  It  also  appears  that  the  patents  upon 
the  lode  claims  of  appellee  embrace  the  conflict  with  the  Victor 
Consolidated  without  any  reservation  as  to  either  surface  or  veins, 
and  in  this  respect  conform  to  the  receiver's  receipts  upon  such 
claims ;  that  the  patent  on  the  Victor  Consolidated  excludes  the 
surface  in  conflict  with  the  claims  of  appellee  and  all  veins'  hav- 
ing their  apex  within  such  conflict,  which  are  the  same  exceptions 
contained  in  the  receiver's  receipt  for  that  claim ;  that  the  portal 
to  the  Ithaca  tunnel  site  was  at  the  date  of  its  location  on  public 
domain ;  that  work  thereon  was  prosecuted  diligently,  and  that  the 
location  of  such  tunnel  was  in  all  respects  regular ;  that  all  neces- 
sary steps  were  taken  by  appellant  to  locate  the  blind  veins  cut  in 
such  tunnel,  which  are  in  controversy  in  this  case ;  that  the  rec- 
ord titles  of  the  claims  of  appellee  are  vested  in  it,  and  the  record 
titles  of  the  Victor  Consolidated,  the  Ithaca  tunnel  site,  and  blind 
veins  discovered  therein  underneath  the  claims  of  appellee,  are  vest- 
ed in  appellant.  The  record  discloses  that  appellant  offered  testi- 
mony tending  to  prove  that  at  the  date  of  the  location  of  its  tunnel 


LOCATION. 


289 


^4  W.  1468  Bl 

19_MiNiNG  Law 


290  TUNNEL    SITES    AND    BLIND   VEINS. 

site  mineral  in  place  had  not  been  discovered  on  the  Monarch  and 
Mammoth  Pearl  lode  claims." 

The  assignments  of  error  present  the  following  proposition,  which 
it  is  stipulated  the  case  involves  and  to  which  the  decision  may  be 
directed : 

"First.  Whether  or  not  the  Ithaca  tunnel  (the  tunned  claimed 
by  plaintiff  in  error)  is  entitled  to  a  right  of  way  through  defend- 
ant in  error's  lode  claims. 

"Second.  Whether  or  not  plaintiff  in  error  has  acquired  by  vir- 
tue of  said  tunnel-site  location  the  ownership  and  right  to  the  pos- 
session of  the  blind  veins  cut  therein,  to  wit,  veins  or  lodes  not  ap- 
pearing on  the  surface  and  not  known  to  exist  prior  to  the  date  of 
location  of  said  tunnel  site. 

"Third.  Whether  or  not  plaintiff  in  error  is  the  owner  and  en- 
titled to  the  ore  contained  in  the  vein  of  its  Victor  Consolidated 
claim,  within  the  surface  boundaries  and  across  lode  claims  of  de- 
fendant in  error. 

"Fourth.  Whether  or  not  plaintiff  in  error  should  have  been  al- 
lowed to  introduce  evidence  for  the  purpose  of  showing  that  there 
was  no  discovery  of  mineral  in  place  on  the  Monarch  and  Mammoth 
Pearl  claims  of  defendant  in  error  prior  to  the  location  of  said 
tunnel  site." 

The  third  proposition  involves  the  relation  of  §§  2322  and  2336. 
It  is  first  discussed  by  plaintiff  in  error,  and  is  given  the  most  prom- 
inence in  the  argument,  and  we  therefore  give  it  precedence  in 
the  order  of  discussion.  It  presents  for  the  first  time  in  this  court 
the  rights  of  a  junior  location  of  a  cross  vein  within  the  side  lines 
of  a  senior  location  under  §  2336.  Prior  to  the  decision  by  the 
supreme  court  of  Colorado  in  the  case  at  bar  that  court  had  de- 
cided that  the  junior  location  was  entitled  to  all  of  the  ore  found 
on  his  vein  within  the  side  lines  of  the  senior  location,  except  at 
the  space  of  intersection  of  the  two  veins.  Braiiagan  v.  Dulaney 
(1885)  8  Colo.  408,  8  Pac.  669;  Lee  v.  Stahl  (1886)  9  Colo.  208, 
II  Pac.  yy;  Morgenson  v.  Middlesex  Min.  &  Mill.  Co.  (1887)  11 
Colo.  176,  17  Pac.  513;  Lee  v.  Stahl,  13  Colo.  174,  22  Pac.  456.  In 
Coffee  V.  Emigh,  (1890)  15  Colo.  184,  10  L,  R.  A.  125,  23  Pac. 
83,  it  was  held  that  the  rule  laid  down  in  the  foregoing  cases  had 
become  established  law.  The  claims  of  the  plaintiff  in  error  were 
located  after  the  decisions,  and  it  is  contended  that  the  rule  laid  down 
by  them  became  a  rule  of  property  in  the  state,  and  it  is  earnestly 
urged  that  to  reverse  the  rule  now  would  take  from  plaintiff  in  error 
that  which  it  "had  reason  to  believe  was  a  vested  right  in  the  Victor 
Consolidated  vein." 

There  are  serious  objections  to  accepting  that  consequence  as  de- 
terminative of  our  judgment.  We  might  by  doing  so  confirm 
titles  in  Colorado,  but  we  might  disturb  them  elsewhere.  The 
statute  construed  is  a  Federal  one,  being  a  law,  not  only  for  Colo- 


LOCATION.  291 

rado,  but  for  all  of  the  mining  states,  and  therefore,  a  rule  for  all, 
not  a  rule  for  one,  must  be  declared.     Besides,  what  consideration 
should  have  been  given  to  prior  cases,  the  supreme  court  of  the  state 
was  better  able  to  judge  than  we  are.     It  may  be  that  the  repose 
of  titles  in  the  state  was  best  effected  by  the  reversal  of  the  prior 
cases.     At  any  rate,  a  Federal  statute  has  more  than  a  local  appli- 
cation, and  until  construed  by  this   court  cannot  be  said  to  have 
an  established  meaning.    The  necessity  of  this  is  illustrated,  if  it  need 
illustration,  from  the  different  view  taken  of  §§  2322  and  2336  in 
California,   Arizona,   and    Montana,    from   that   taken   in   the  prior 
Colorado  cases.    The  supreme  courts  respectively  of  those  states  and 
that  territory  have  adjudged  a  superiority  of  right  to  the  cross  veins 
to  be  in  the  senior  location.    Manifestly,  on  account  of  this  difference, 
if  for  no  other,  this  court  must  interpret  the  sections  independently 
of  local  considerations.  And  in  doing  so  we  do  not  find  in  the  sections 
much  ambiguity  so  far  as  the  issue  raised  by  the  record  is  concerned ; 
indeed,  not  even  much  necessity  for  explanation.    Section  2336  does 
not  conflict  with  §  2322,  but  supplements  it.    Section  2336  imposes  a 
servitude  upon  the  senior  location,  but  does  not  otherwise  affect  the 
exclusive  rights  given  the  senior  location.    It  gives  a  right  of  way 
to  the  junior  location.     To   what  extent,   however,   there  may  be 
some  ambiguity;  whether  only  through  the  space  of  the  intersec- 
tion of  the  veins,  as  held  by  the  supreme  courts  of  California,  Ari- 
zona,  and   Montana,   or  through  the   space  of  intersection  of  the 
claims,  as  held  by  the  supreme  court  of  Colorado  in  the  case  at  bar. 
It   is   not   necessary   to   determine   between   these   views.      One   of 
them  is  certainly  correct,  and  therefore  the  contention  of  the  plain- 
tiff' in  error  is  not  correct,  and,  more  than  that,  it  is  not  necessary 
to  decide  on  this  record.     A  complete  interpretation  of  the   sec- 
tions would,  of  course,  determine  between  those  views,  but  on  that 
determination  other  rights  than  those  submitted  for  judgment  may  be 
passed  upon,  and  we  prefer  therefore  to  reserve  our  opinion. 

There  was  some  contrariety  of  views  in  the  cases  on  other  points. 

There  was  discussion  as  to  whether  veins  cross  on  their  strike  or 

their  dip,  and  it  was  held  that  they  could  cross  on  both  strike  and 

"  dip,  but  as  to  the  ex;act  application  of  §  2336  to  either  there  was 

some    disagreement. 

The  supreme  court  of  Arizona  said :  "Congress  had  in  mind,  at 
the  time  of  the  enactment  of  the  law  of  1872,  that,  as  mining  rights 
then  stood,  A's  lode  might  legally  cross  B's  lode  on  the  strike,  and 
whether  on  the  dip  or  not,  makes  no  difference;  and  §  2336  was 
designed  to  define  the  rights  of  A  and  B  in  the  space  of  intersection." 
Watcrvale  Min.  Co.  v.  Leach,  33  Pac.  418. 

The  supreme  court  of  California  held  in  Wilhelm  v.  Sylvester,  ipi 
Cal.  358,  35  Pac.  997.  that  the  provisions  of  the  section  could  readily 
be  construed  as  intending  to  protect  the  rights  of  old  ledge  locations ; 
and,  speaking  of  veins  intersecting  on  their  dip,  said:    "Moreover, 


292  TUNNEL   SITES    AND   BLIND   VEINS. 

there  is  strong  reason  for  thinking  that  such  an  intersection  was  the 
very  one  in  the  mind  of  Congress  when  it  passed  §  2336 ;  for  in  that 
section,  and  speaking  of  the  same  subject,  it  says  that  'where  two  or 
more  veins  unite,  the  oldest  or  prior  location  shall  take  the  vein  be- 
low the  point  of  union,'  and  if  the  other  kind  of  intersection  [on  the 
strike]  was  in  the  minds  of  the  legislators  at  that  time  they  would 
not  have  used  the  word  'below' ;  for  'below'  would  not  apply  at  all 
to  a  union  on  the  strike  of  two  veins,  such  as  the  appellant's  rights 
depend  on  in  the  case  at  bar."  But  the  chief  justice  of  the  state, 
concurring  in  the  result,  observed : 

"I  think,  however,  that  too  much  is  conceded,  both  in  the  opinion 
of  the  court  and  in  the  argument  of  counsel  for  respondent,  in  as- 
suming that  the  provisions  of  §  2336  cannot  be  applied  to  locations 
made  since  the  passage  of  the  mining  law  of  1872  on  veins  which 
intersect  upon  their  strike  without  bringing  it  in  conflict  with  the 
plain  terms  of  §  2322.  This  wholly  unwarranted  assumption  has 
been  the  source  of  all  the  trouble  and  difficulty  which  the  land  office 
and  some  of  the  state  courts  have  encountered  in  their  attempts  to 
construe  provisions  of  a  statute  which  are  in  perfect  harmony,  but 
which  have  been  erroneously  supposed  to  be  inconsistent." 

The  supreme  court  of  Colorado  concurred  in  the  conclusions  of 
the  courts  of  Arizona  and  California,  and  expressed  its  own  view  as 
follows : 

"Our  conclusion  is  that  the  provisions  of  §  2336  apply  to  loca- 
tions made  under  the  act  of  1872,  as  well  as  before,  refer  to  the  in- 
tersection or  crossing  of  veins  either  upon  their  strike  or  dip ;  that 
the  space  of  intersection  in  determining  the  ownership  of  ore  within 
such  space  means  either  intersection  of  veins  or  conflicting  claims, 
according  to  the  facts  in  each  particular  case,  and  grants  a  right  of 
way  to  the  junior  claimant  for  the  convenient  working  of  his  mine 
through  such  space  upon  the  veins  (underneath  the  surface)  which 
he  owns  or  controls  outside  of  that  space.  This  construction  renders 
the  two  sections  entirely  harmonious,  gives  effect  to  every  clause 
and  part  of  each,  and  in  so  far  as  §  2336  regulates  or  in  any  manner 
provides  for  rights  as  between  conflicting  claims,  it  applies  only  to 
intersections  consistent  with  all  the  provisions  of  §  2322." 

See,  for  the  views  of  the  supreme  court  of  Montana,  Pardee  v. 
Murray,  4  Mont.  234,  2  Pac.  16. 

2.  The  other  assignments  of  error  relate  to  rights  claimed  by 
plaintiff  in  error  by  the  location  of  the  tunnel  site,  and  present  the 
questions  whether  such  location  gave  to  the  plaintiff  in  error  the  fol- 
lowing rights :  Of  way  through  the  lode  claims  of  the  defendant  in 
error ;  of  possession  of  the  blind  veins  cut  by  the  tunnel  underneath 
the  claims  of  the  defendant  in  error. 

The  plaintiff  in  error  asserts  the  right  of  way  for  its  tunnel  under 
§  2323  by  implication,  and  from  that  implication,  and  the  rule  it 


LOCATION.  293 

contends  for  as  to  cross  veins,  deduces  its  right  to  all  of  the  blind 
veins.  The  contention  as  to  cross  veins  we  have  answered,  and  the 
deduction  as  to  blind  veins  is  not  justified.  The  section  contemplates 
that  tunnels  may  be  run  for  the  development  of  veins  or  lodes,  for  the 
discovery  of  mines,  gives  a  right  of  possession  of  such  veins  or  lodes, 
if  not  previously  known  to  exist,  and  makes  locations  on  the  surface 
after  the  commencement  of  the  tunnel  invalid.  There  is  no  implica- 
tion of  a  displacement  of  surface  locations  made  before  the  com- 
mencement of  the  tunnel.  Indeed,  there  is  a  necessary  implication  of 
their  preservation.  And  there  can  be  no  implication  of  a  conflict  with 
the  rights  given  by  §  2322.  The  exclusiveness  of  those  rights  we  have 
declared.  The  tunnel  can  only  be  run  in  subordination  to  them.  How 
else  can  §  2322  be  given  efifect?  There  are  no  exceptions  to  its  lan- 
guage. The  locators  "of  any  mineral  veins,  lode,  or  ledge"  are 
given,  not  only  "an  exclusive  right  of  possession  and  enjoyment"  of 
all  the  surface  included  within  the  lines  of  their  locations,  but  "of  all 
veins,  lodes,  and  ledges  throughout  their  entire  depth,  the  top  or 
apex  of  which  lies  inside  of  such  surface  lines  extended  downward 
vertically."  A  locator  therefore  is  not  confined  to  the  vein  upon 
which  he  based  his  location  and  upon  which  the  discovery  was 
made.  "All  veins  or  lodes  having  their  apices  within  the  plane  of 
the  surface  lines  extended  downward  are  his,  and  possession  of  the 
surface  is  possession  of  all  such  veins  or  lodes  within  the  prescribed 
limitations."     Barringer  &  Adams,  Mines  Sz;  Mining,  page  44. 

Under  the  old  law  the  miner  "located  the  lode.  Under  the  new 
[the  act  of  1872]  he  must  locate  a  piece  of  land  containing  the  top 
or  apex  of  the  lode.  While  the  vein  is  still  the  principal  thing,  in 
that  it  is  for  the  sake  of  the  vein  that  the  location  is  made,  the  loca- 
tion must  be  of  a  piece  of  land  including  the  top  or  apex  of  the  vein. 
If  he  makes  such  a  location,  containing  the  top  or  apex  of  his  dis- 
covered lode,  he  will  be  entitled  to  all  other  lodes" having  their  tops 
or  apices  within  their  surface  boundaries."     Lindsay,  Mines,  §  71. 

And  this  court  said,  speaking  by  Mr.  Justice  Brewer,  in  Campbell 
V.  Ellet,  iGy  U.  S.  116,  42  L.  ed.  loi,  17  Sup.  Ct.  Rep.  765 : 

"But  the  patent  is  not  simply  a  grant  of  the  vein,  for,  as  stated  in 
the  section,  'a  patent  for  any  land  claimed  and  located  for  valuable 
deposits  may  be  obtained  in  the  following  manner.'  It  must  also  be 
noticed  that  §  2322,  in  respect  to  locators,  gives  them  the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface  within  the  lines 
of  their  locations,  and  all  veins,  lodes,  and  ledges,  the  tops  or  apices 
of  which  are  inside  such  lines.  So  that  a  location  gives  to  the  locator 
something  more  than  the  right  to  the  vein  which  is  the  occasion  of 
the  location."  See  also  Del  Monte  Min.  &  Mill.  Co.  v.  Last  Chance 
Min.  &  Mill.  Co.  \yi  U.  S.  55,  43  L.  ed.  72,  18  Sup.  Ct.  Rep.  895. 

The  only  condition  is  that  the  veins  shall  apex  within  the  surface 


294  TUNNEL    SITES   AND    BLIND   VEINS. 

lines.  It  is  not  competent  for  us  to  add  any  other  condition.  Blind 
veins  are  not  excepted,  and  we  cannot  except  them.  They  are  in- 
cluded in  the  description  "all  veins"  and  belong  to  the  surface  loca- 
tion. 

3.  The  same  reasoning  disposes  of  the  claim  of  plaintiff  in  error 
to  the  right  of  way  for  its  tunnel  through  the  ground  of  defendant 
in  error,  so  far  as  the  right  of  way  is  based  on  the  statutes  of  the 
United  States.  So  far  as  it  is  based  on  the  statutes  of  Colorado  it  is 
disposed  of  by  their  interpretation  by  the  supreme  court  of  Colorado, 
and,  expressing  it,  the  court  said : 

"It  is  contended  by  counsel  for  appellant  that,  under  §  2338,  Rev. 
Stat.  U.  S.  and  §  3 141,  Mills's  Anno.  Stat,  it  is  entitled  to  such 
right.  The  first  of  these  sections  provides  that  in  the  absence  of 
necessary  legislation  by  Congress  the  legislature  of  a  state  may  pro- 
vide rules  for  working  mines  involving  easements,  drainage,  and 
other  necessary  means  to  their  complete  development,  and  that  these 
conditions  shall  be  fully  expressed  in  the  patent.  The  section  of 
Mills  referred  to  provides  that  a  tunnel  claim  located  in  accordance 
with  its  provisions  shall  have  the  right  of  way  through  lodes  which 
may  lie  in  its  course,  but  it  will  be  observed  that  this  section  only 
refers  to  tunnels  located  for  the  purposes  of  discovery,  and  if  any 
of  its  provisions  are  still  in  force, — which  appears  to  be  doubted  in 
Ellet  V.  Campbell,  18  Colo.  510,  33  Pac.  521, — they  can  have  no  ap- 
plication to  the  case  at  bar,  because  the  section  of  the  Revised  Stat- 
utes only  provides  for  easements  for  the  development  of  mines,  and 
the  section  of  Mills  relied  upon  does  not  attempt  to  confer  any  such 
rights,  but  is  limited  to  the  one  purpose  of  discovery.  In  this  re- 
spect it  has  been  clearly  superseded  by  the  act  of  Congress,  so  that 
if  appellant  is  entitled  to  the  right  claimed  it  must  attach  by  virtue 
of  some  provision  of  this  act." 

4.  An  assignment  of  error  is  based  upon  an  offer  of  plaintiff  in 
error  to  prove  that  at  the  time  of  the  location  of  the  Ithaca  tunnel 
site  no  ore  had  been  discovered  in  two  of  the  patented  claims  of  the 
defendant  in  error,  to  wit,  the  Monarch  and  the  Mammoth  Pearl. 
The  ruling  was  right.  The  patents  were  proof  of  the  discovery 
and  related  back  to  the  date  of  the  locations  of  the  claims. 
The  patents  could  not  be  collaterally  attacked.  This  has  been  de- 
cided so  often  that  a  citation  of  cases  is  unnecessary. 

Judz^nent  affirmed. 


LOCATION.  295 

CREEDE  ,&  CRIPPLE  CREEK  MINING  &  MILLING  COM- 
PANY, Petitioner,  v.  UINTA  TUNNEL  MINING  & 
TRANSPORTATION  COMPANY. 

1905.     Supreme  Court  of  the  United  States. 
196  U.  S.  337,  49  L.  ed.  501,  25  Sup.  Ct.  266. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court  i^ 

Certiorari  to  review  a  judgment  of  the  United  States  circuit  court 
of  appeals  for  the  eighth  circuit  (57  C.  C.  A.  200,  119  Fed.  164), 
reversing  a  judgment  of  the  circuit  court  of  the  United  States,  ren- 
dered upon  a  verdict  of  a  jury,  directed  by  the  court. 

The  action  was  originally  brought  by  the  Creede  &  Cripple  Creek 
Mining  &  Milhng  Company,  as  plaintiff,  against  the  Uinta  Tunnel 
Mining  &  Transportation  Company,  as  defendant,  in  the  district 
court  of  the  county  of  El  Paso,  Colorado,  for  the  possession  of  cer- 
tain mining  claims,  and  for  damages.  Equitable  relief  was  also 
prayed.  On  motion  of  the  defendant  the  action  was  removed  to  the 
United  States  circuit  court  for  the  district  of  Colorado,  where,  also 
on  its  motion,  the  pleadings  were  reformed,  and  the  action  made  one 
for  the  possession  of  the  property,  and  damages. 

The  plaintiff  filed  an  amended  complaint,  alleging  in  substance 
that  it  was  the  owner  in  fee  and  in  possession,  and  entitled  to  the 
possession,  of  the  Ocean  Wave  and  Little  Mary  lode  mining  claims, 
being  survey  lot  No.  8192,  evidenced  by  mineral  certificate  No.  338, 
the  patent  of  the  United  States  to  said  plaintiff  for  said  claims  bear- 
ing date  December  21,  1893;  that  said  claims  were  duly  located  and 
discovered  on  the  2d  of  January,  1892,  and  that  the  patent  related 
back  and  took  eft'ect  of  that  date  for  all  purposes  given  and  provided 
by  the  laws  of  the  United  States  and  the  state  of  Colorado  concern- 
ing mining  claims. 

Eritry  upon  the  claims  and  ouster  of  plaintiff  by  defendant  by 
means  of  its  tunnel  were  also  alleged. 

Thereafter  the  defendant  filed  its  answer.  Upon  motion  of  plain- 
tiff certain  portions  thereof  were  stricken  out,  and  on  the  trial  testi- 
mony oft'ered  by  the  defendant  in  support  of  the  portions  stricken 
out  was  rejected. 

The  matter  to  be  determined  is  the  sufficiency  of  the  defenses 
pleaded  and  stricken  out.  To  appreciate  them  fully  it  is  well  to  state 
some  facts  about  which  there  is  no  dispute,  and  it  is  sufficient  to 
state  the  facts  in  reference  to  one  of  the  lode  mining  claims,  as  the 
proceedings  in  respect  to  the  two  were  alike.  On  February  i,  1892, 
J.  B.  Winchell  and  E.  W.  McNeal  filed  in  the  ofiice  of  the  county 
clerk  of  El  Paso  county  (the  county  in  which  the  mining  claim  was 
situated)  a  certificate  of  location  which,  not  verified  by  affidavit  or 

"  Parts  of  the  opinion  are  omitted. 


296  TUNNEL    SITES    AND    BLIND   VEINS. 

Other  testimony,  stated  that  they  had,  on  January  2,  1892,  located 
and  claimed,  in  compliance  with  the  mining  acts  of  Congress,  1,500 
linear  feet  on  the  Ocean  Wave  lode,  and  gave  the  boundaries  of  the 
claim.  By  several  mesne  conveyances  the  title  of  Winchell  and  AIc- 
Neal  passed  to  the  plaintiff.  On  August  5,  1893,  the  plaintiff  made 
an  entry  of  the  claim  in  the  proper  land  office  of  the  United  States, 
and,  no  proceedings  in  adverse  being  instituted,  a  patent  therefor 
was  issued  to  it  on  December  21,  1893.  There  is  no  reference  in 
the  patent  to  the  discovery  or  the  filing  of  the  location  certificate. 
The  first  appearance  of  the  claim  on  the  records  of  any  office  of  the 
United  States  is  the  entry  in  the  local  land  office  of  August  5,  1893, 
and  the  only  prior  record  in  any  state  office  is  the  location  certificate, 
unsworn  to,  filed  February  i,  in  which  the  parties  filing  the  certifi- 
cate stated  that  they  had  discovered  the  lode  on  January  2,  1892. 
On  February  25,  1892,  a  location  certificate  of  the  defendant's  tunnel 
was  filed  in  the  office  of  the  county  clerk  of  El  Paso  county,  which, 
verified  by  the  oath  of  one  of  the  locators,  stated  that  on  January 
13,  1892,  thay  had  located  the  tunnel  site  by  posting  in  a  conspicuous 
place  and  at  the  entrance  to  the  tunnel  a  notice  of  their  intent  to  claim 
and  work  the  tunnel ;  that  they  had  performed  work  therein  to  the 
value  of  $270  in  driving  said  tunnel,  and  $80  in  furnishing  and 
putting  in  timbers,  and  that  it  was  their  bona  fide  intent  to  prosecute 
the  work  with  diligence  and  dispatch  for  the  discovery  of  lodes  and 
for  mining  purposes.  The  certificate  also  contained  a  full  descrip- 
tion of  the  boundaries  of  the  tunnel  site  as  claimed. 

In  a  general  way  it  may  be  said  that  the  defenses  which  were 
stricken  out  were  a  priority  of  right  and  an  estoppel.     *     *     * 

Was  there  error  in  striking  out  the  defenses  ?     '^'     *     * 

It  does  not  appear  from  the  answer  or  testimony  that  the  tunnel 
had  reached  the  boundaries  of  the  plaintiff's  claims  prior  to  the  en- 
try or  even  prior  to  the  patent.  For  the  purpose  of  this  case,  there- 
fore, we  must  assume  that,  although  its  line  had  been  marked  out, — 
a  line  extending  through  the  plaintiff's  ground, — yet  in  fact  no  work 
had  been  done  within  such  ground  prior  to  the  patent. 

The  propositions  upon  which  the  plaintiff  relies  are  that  discovery 
is  the  initial  fact;  that  the  patent  when  issued  relates  back  to  that 
initial  fact  and  confirms  all  rights  as  of  that  date ;  that  no  inquiry  is 
permissible  as  to  the  time  of  that  discovery,  it  being  concluded  by  the 
issue  of  the  patent ;  that  such  time  antedated  anything  done  in  or  for 
the  tunnel ;  that  no  adverse  proceedings  were  instituted  after  it  had 
applied  for  patent,  and  that,  therefore,  its  rights  became  vested  in 
the  ground,  the  same  right  which  any  other  landowner  has,  and 
which  could  not  be  disturbed  by  the  defendant  by  means  of  its  tun- 
nel. St.  Louis  Min.  &  Mill.  Co.  v.  Montana  Min.  Co.  194  U.  S.  235, 
48  L.  ed.  953,  24  Sup.  Ct.  Rep.  654. 

On  the  other  hand,  defendant  contends  that,  as  the  first  record  in 
any  office  of  the  government  was  the  record  of  the  entry  on  August 


LOCATION.  297 

5,  1893,  the  patent  issued  in  an  ex  parte  proceeding  is  conclusive 
only  that  every  preceding  step,  including  discovery,  had  then  been 
taken ;  that  it  in  fact  located  its  tunnel  site  prior  to  any  discovery  or 
marking  on  the  ground  of  plaintiff's  claim ;  that  it  was  not  called 
upon  to  adverse  plaintiff's  application  for  a  patent,  because  no  patent 
is  ever  issued  for  a  tunnel,  and  it  had  not  then  discovered  any  veins 
within  its  tunnel ;  that  plaintiff,  with  full  knowledge  of  defendant's 
tunnel  location,  permitted  the  driving  of  the  tunnel  through  its 
ground  and  beyond,  at  an  expenditure  of  $135,000,  and  made  no  ob- 
jection until  the  discovery  of  the  veins  beyond  its  ground,  and  then, 
for  the  first  time,  and  to  prevent  defendant  from  developing  such 
veins,  brought  this  action,  and  that  by  such  acquiescence  it  was  now 
estopped  to  question  defendant's  use  of  the  tunnel. 

Obviously  the  parties  divide  as  to  the  effect  of  plaintiff's  patent. 
The  circuit  court  held  with  the  plaintiff,  the  court  of  appeals  with 
the  defendant.  It  may  be  conceded  that  a  patent  is  conclusive  that 
the  patentee  has  done  all  required  by  law  as  a  condition  of  the  issue ; 
that  it  relates  to  the  initiation  of  the  patentee's  right,  and  cuts  off  all 
intervening  claims.  It  may  also  be  conceded  that  discovery  of  min- 
eral is  the  initial  fact.  But  when  did  the  initial  fact  take  place  ?  Are 
all  other  parties  concluded  by  the  locator's  unverified  assertion  of 
the  date  or  the  acceptance  by  the  government  of  his  assertion  as 
sufficient,  with  other  matters,  to  justify  the  issue  of  a  patent?  Un- 
doubtedly, so  far  as  the  question  of  time  is  essential  to  the  right, 
the  patent  is  conclusive,  but  is  it  beyond  that  ? 

In  order  to  reach  a  clear  understanding  of  the  question  it  seems 
necessary  to  consider  the  legislation.  Three  things  are  provided  for : 
discovery,  location,  and  patent.  The  first  is  the  primary,  the  initial 
fact.  The  others  are  dependent  upon  it,  and  are  the  machinery  de- 
vised by  Congress  for  securing  to  the  discoverer  of  mineral  the  full 
benefit  of  his  discovery.     *     *     * 

Location  is  the  act  or  series  of  acts  by  which  the  right  of  exclusive 
possession  of  mineral  veins  and  the  surface  of  mineral  lands  is  vested 
in  the  locator.  For  this  the  only  requirement  made  by  Congress  is 
the  marking  on  the  surface  of  the  boundaries  of  the  claim.  By 
§  2324  (U.  S.  Comp.  Stat.  1901,  p.  1426),  however.  Congress  recog- 
nized the  validity  of  any  regulations  made  by  the  miners  of  any 
mining  district  not  in  conflict  with  the  laws  of  the  United  States  or 
the  laws  of  the  state  or  territory  within  which  the  district  is  situ- 
ated.   This  is  held  to  authorize  legislation  by  the  state.     *     *     * 

And  many  territories  and  states  (Colorado  among  the  number) 
have  made  provisions  in  respect  to  the  location  other  than  the  mere 
marking  on  the  ground  of  the  boundaries  of  the  claim.  So,  before 
a  location  in  those  states  is  perfected,  all  the  provisions  of  the  state 
statute  as  well  as  of  the  Federal  must  be  complied  with,  for  location 
there  does  not  consist  in  a  single  act.     *     *     * 


298  TUNNEL   SITES    AND    BLIND   VEINS. 

Returning  now  to  the  matter  of  location,  the  Colorado  statutes  in 
substance  require — 

"i.  To  place  at  the  point  of  discovery,  on  the  surface,  a  notice 
containing  the  name  of  the  lode,  the  name  of  the  locator,  and  the 
date  of  the  discovery. 

"2.  Within  sixty  days  from  the  discovery,  to  sink  a  discovery 
shaft  10  feet  deep,  showing  a  well-defined  crevice. 

"3.  To  mark  the  surface  boundaries  by  six  posts,  one  at  each  cor- 
ner and  one  at  the  center  of  each  side  line,  hewed  or  marked  on  the 
side  or  sides  in  towards  the  claim. 

"4.  The  disclosure  of  the  lode  in  an  open  cut,  cross  cut,  or  tunnel 
suffices  instead  of  a  10- foot  shaft. 

"5.  Within  three  months  from  date  of  discovery  he  must  file  a 
location  certificate  with  the  county  recorder  giving  a  proper  descrip- 
tion of  the  claim,  and  containing  also  the  name  of  the  lode,  the  name 
of  the  locator,  the  date  of  the  location,  the  number  of  feet  in  length 
on  each  side  of  the  center  of  the  discovery  shaft,  and  the  general 
course  of  the  lode."   Morrison,  Mining  Rights,  nth  ed.  p.  59. 

The  issue  of  a  patent  for  a  lode  claim  in  Colorado  is  therefore  not 
only  a  conclusive  adjudication  of  the  fact  of  the  discovery  of  the 
mineral  vein,  but  also  of  compliance  with  these  several  provisions  of 
its  statutes.  The  supreme  court  of  that  state  has  decided  that  the  or- 
der is  not  essential,  providing  no  intervening  rights  have  accrued.  In 
Breivster  v.  Shoemaker,  28  Colo.  176,  180,  53  L.  R.  A.  793,  798,  89 
Am.  St.  Rep.  188,  190,  63  Pac.  309,  310,  it  said: 

"The  order  of  time  in  which  these  several  acts  are  performed  is 
not  of  the  essence  of  the  requirements,  and  it  is  immaterial  that  the 
discovery  was  made  subsequent  to  the  completion  of  the  acts  of  loca- 
tion, provided,  only,  all  the  necessary  acts  are  done  before  interven- 
ing rights  of  third  parties  accrue.  All  these  other  steps  having  been 
taken  before  a  valid  discovery,  and  a  valid  discovery  then  following, 
it  would  be  a  useless  and  idle  ceremony,  which  the  law  does  not 
require,  for  the  locators  again  to  locate  their  claim  and  refile  their 
location  certificate,  or  file  a  new  one." 

And  that  has  been  the  general  doctrine.     '•'     "*'     * 

But  what  is  the  meaning  of  the  statute?  Its  language  is  "no  loca- 
tion of  a  mining  claim  shall  be  made  until  the  discovery  of  the  vein 
or  lode  within  the  limits  of  the  claim  located."  Does  that  require 
that  a  discovery  must  be  made  before  any  marking  on  the  ground, 
especially  when,  as  under  the  Colorado  statutes,  several  other  steps 
in  the  process  of  location  are  prescribed,  or  does  it  mean  that  no  loca- 
tion shall  be  considered  as  complete  until  there  has  been  a  discovery  ? 
Bearing  in  mind  that  the  principal  thought  of  the  chapter  is  explora- 
tion and  appropriation  of  mineral,  does  it  mean  anything  more  than 
that  the  fact  of  discovery  shall  exist  prior  to  the  vesting  of  that 
right  of  exclusive  possession  which  attends  a  valid  location? 

This  may  be  looked  at  in  another  aspect.    Suppose  a  discovery 


LOCATION.  299 

is  not  made  before  the  marking  on  the  ground  and  posting  of  notice, 
but  is  then  made,  and  it  and  all  other  statutory  provisions  are  com- 
plied with  before  the  entry,  which  is  an  application  for  the  purchase 
of  the  ground, — of  what  benefit  would  it  be  to  the  government  to 
require  the  discoverer  to  repeat  the  marking  on  the  ground,  the  post- 
ing of  notice,  and  other  acts  requisite  to  perfect  a  location  ?  If  every- 
thing has  been  done  which,  under  the  law%  ought  to  be  done  to 
entitle  the  party  to  purchase  the  ground,  wherein  is  the  government 
prejudiced  if  the  precise  order  of  those  acts  is  not  followed?  Or, 
to  go  a  step  farther,  suppose,  on  an  application  for  a  patent,  an  ad- 
verse suit  is  instituted,  and  on  the  trial  it  appeared  that  the  plaintiff 
in  that  suit  had  made  a  discovery  and  taken  all  the  steps  necessary 
for  a  location  in  the  statutory  order,  although  not  until  after  the  ap- 
plicant for  the  patent  had  done  everything  required  by  law,  would 
there  be  any  justice  in  sustaining  the  adverse  suit,  and  awarding 
the  property  to  the  plaintiff  therein,  on  the  ground  that  the  appli- 
cant had  not  made  any  discovery  until  the  day  after  his  marking  on 
the  ground,  and  so  the  discovery  did  not  precede  the  location? 

These  suggestions  add  strength  to  the  concurring  opinion  of  three 
leading  commentators  on  mining  law,  the  general  trend  of  the  rulings 
of  the  [land]  department  and  decisions  of  the  courts,  to  the  effect 
that  the  order  in  which  the  several  acts  are  done  is  not  essential, 
except  so  far  as  one  is  dependent  on  another.  Doubtless  a  locator 
does  not  acquire  the  right  of  exclusive  possession  unless  he  has  made 
a  valid  location,  and  discovery  is  essential  to  its  validity ;  but  if  all 
the  acts  prescribed  by  law  are  done,  including  a  discovery,  is  it  not 
sacrificing  substance  to  form  to  hold  that  the  order  of  those  acts  is 
essential  to  the  creation  of  the  right?  It  must  be  remembered  that 
the  discovery  and  the  marking  on  the  ground  are  not  matters  of  rec- 
ord but  ;';/  pais,  and,  if  disputed  in  an  adverse  suit  or  otherwise,  must 
be  shown,  as  other  like  facts,  by  parol  testimony.  It  must  also  be 
remembered  that  the  certificate  of  location  required  by  the  Colorado 
statutes  need  not  be  verified.  The  one  in  this  case  was  not.  A 
locator  might,  if  so  disposed,  place  the  date  of  discovery  before  it 
was  in  fact  made,  and  at  any  time  within  three  months  prior  to  the 
filing  of  the  certificate.     *     *     * 

It  would  seem,  therefore,  *  ^'  *  that,  as  between  the  government 
and  the  locator,  it  is  not  a  vital  fact  that  there  was  a  discovery 
of  mineral  before  the  commencement  of  any  of  the  steps  required 
to  perfect  a  location,  and  that  if,  at  the  time  of  the  entry,  every- 
thing had  been  done  which  entitled  the  party  to  an  entry,  to  wit, 
a  discovery  and  a  perfected  location,  the  government  would  not 
be  justified  in  rejecting  the  application  on  the  ground  that  the 
customary  order  of  procedure  had  not  been  followed.  In  other 
words,  the  government  does  not,  by  accepting  the  entry,  and  confirm- 
ing it  by  a  patent,  determine  as  to  the  order  of  proceedings  prior 
to  the  entry,  but  only  that  all  required  by  law  have  been  taken. 


300  TUNNEL    SITES    AND   BLIND   VEINS. 

If,  therefore,  the  entry  and  patent  do  not  of  themselves  necessarily 
determine  the  order  of  the  prior  proceedings,  why  may  not  anyone 
w^ho  claims  rights  anterior  to  the  entry,  and  dependent  upon  that 
order,  show,  as  a  matter  of  fact,  what  it  was?  One  not  a  party  to 
proceedings  between  the  government  and  the  patentee  is  concluded 
by  the  action  of  the  government  only  so  far  as  that  action  involves 
a  determination.  There  is  a  determination  by  the  fact  of  entry  and 
patent  that  there  was,  prior  to  the  entry,  a  discovery  and  a  location. 
Having  been  so  determined,  third  parties  may  be  concluded  thereby. 

But  it  may  be  said  that  when  the  time  of  a  particular  fact  is  con- 
cluded by  an  adjudication,  or  when  an  opportunity  is  presented 
for  such  an  adjudication,  and  not  availed  of,  the  time  as  stated  must 
be  considered  as  settled ;  that  when  the  plaintiff  applied  for  its  pat- 
ent, if  there  was  any  question  to  be  made  by  the  defendant  of  any 
statement  of  fact  made  in  the  location  certificate  or  other  record,  it 
should  have  been  challenged  by  an  adverse  suit.  Failing  to  do  so,  the 
fact  must  be  considered  to  be  settled  as  stated.  Undoubtedly,  if, 
in  an  adverse  suit,  the  time  of  any  particular  matter  is  litigated,  the 
judgment  is  conclusive;  and  if  the  date  of  discovery  stated  in  the 
plaintiff's  location  certificate  had  been  challenged  in  an  appropriate 
action  brought  by  the  defendant,  and  determined  in  favor  of  the 
plaintifif,  there  could  be  now  no  inquiry.  So,  when  the  owner  of  a 
lode  claim  makes  application  for  a  patent,  and  the  owner  of  another 
seeks  to  challenge  the  former's  priority  of  right  on  account  of  the 
date  of  discovery,  it  is  his  duty  to  bring  an  adverse  suit ;  and,  if  he 
fails  to  do  so,  that  question  will  be,  as  to  him  concluded.  Such  is 
the  purpose  and  effect  of  the  adverse  proceedings. 

Is  the  same  rule  also  applicable  to  a  tunnel  site?  This  opens  up 
the  question  of  what  are  the  rights  and  obligations  of  the  owner  of  a 
tunnel.  And  here  these  facts  must  be  borne  in  mind :  The  owner  of 
a  tunnel  never  receives  a  patent  for  it.  There  is  no  provision  in 
the  statute  for  one,  and  none  is  in  fact  ever  issued.  No  discovery 
of  mineral  is  essential  to  create  a  tunnel  right  or  to  maintain  pos- 
session of  it.  A  tunnel  is  only  a  means  of  exploration.  As  the  sur- 
face is  free  and  open  to  exploration,  so  is  the  subsurface.  The  citi- 
zen needs  no  permit  to  explore  on  the  surface  of  government  land  for 
mineral.  Neither  does  he  have  to  get  one  for  exploration  beneath 
the  surface  for  like  purpose.  Nothing  is  said  in  §  2323  (U,  S.  Comp. 
Stat.  1901,  p.  1426)  as  to  what  must  be  done  to  secure  a  tunnel  right. 
That  is  left  to  the  miners'  customs  or  the  state  statutes,  and  the 
statutes  of  Colorado  provide  for  a  location  and  the  filing  of  a  cer- 
tificate of  location.  When  the  tunnel  right  is  secured  the  Federal 
statute  prescribes  its  extent, — a  tunnel  3.000  feet  in  length  and  a 
right  to  appropriate  the  veins  discovered  in  such  tunnel  to  the  same 
extent  as  if  discovered  from  the  surface. 

If  the  tunnel  right  was  vested  before  a  discovery  in  the  plaintifif's 
lode  claim  the  defendant  ought  to  have  the  benefit  of  it.    The  plain- 


LOCATION.  301 

tiff's  right  does  not  antedate  his  discovery ;  at  least  it  does  not  prevail 
over  any  then-existing  right.  But,  it  is  said,  the  defendant  did  not 
adverse  the  plaintiff's  application  for  a  patent;  that  its  omission 
so  to  do  precludes  it  from  now  asserting  a  right  prior  to  the  date  of 
discovery  named  in  the  certificate  of  location,  just  as  a  judgment  in 
an  adverse  suit  involving  the  question  of  date  would  have  been  con- 
clusive. Is  the  owner  of  a  tunnel  who  simply  seeks  to  protect  his 
tunnel,  and  has,  as  yet,  discovered  no  lode  claim,  bound  to  adverse 
an  application  for  the  patent  of  a  lode  claim,  the  lode  of  which  was 
discovered  on  the  surface?  It  is  contended  that  the  case  of  Enter- 
prise Min.  Co.  V.  Rico-Aspen  Consol.  Min.  Co.  167  U.  S.  108, 
42  L.  ed.  96,  17  Sup.  Ct.  Rep.  762,  decides  this  question.  But  in 
that  case  the  line  of  the  tunnel  did  not  enter  the  ground  of  the  lode 
claim,  but  ran  parallel  with  and  distant  from  it  some  500  feet, 
and  we  held  that  the  mere  possibility  that,  in  the  line  of  the  tunnel, 
might  be  discovered  a  vein  which  extended  through  the  ground  of 
the  distant  lode  claim,  did  not  necessitate  adverse  proceedings.  Here 
the  line  of  the  tunnel  runs  directly  through  the  ground  of  the  plain- 
tiff, and  the  question  is  distinctly  presented  whetlier,  in  order  to  pro- 
tect the  right  lo  that  tunnel,  the  defendant  was  called  upon  to 
adverse?  Whatever  might  be  the  propriety  or  advantage  of  such 
action,  the  statute  does  not  require  it. 

Sections  2325  and  2326  (U.  S.  Comp.  Stat.  1901,  pp.  1429,  1430) 
provide  the  manner  of  obtaining  a  patent  and  for  adverse  proceed- 
ings. The  first  commences :  "A  patent  for  any  land  claimed  and  lo- 
cated for  valuable  deposits  may  be  obtained  in  the  following  man- 
ner." This,  obviously,  does  not  refer  to  easements  or  other  rights, 
nor  the  acquisition  of  title  to  land  generally,  but  only  to  land 
claimed  and  located  for  valuable  deposits.  Then,  after  prescribing 
certain  proceedings,  the  statute  adds :  "Tf  no  adverse  claim  shall  have 
been  filed  with  the  register  ...  it  shall  be  assumed  that  the  appli- 
cant IS  entitled  to  a  patent  .  .  .  and  that  no  adverse  claim  exists." 
The  next  section  commences,  "where  an  adverse  claim  is  filed  dur- 
ing the  period  of  publication,  it  shall  be  upon  oath  of  the  person 
or  persons  making  the  same,  and  shall  show  the  nature,  boundaries, 
and  extent  of  such  adverse  claim."  The  section  then  authorizes  the 
commencement  of  an  action  by  the  adverse  claimant  and  a  stay  of 
proceedings  in  the  Land  Department  pending  such  action,  and  adds : 

"After  such  judgment  shall  have  been  rendered,  the  party  entitled 
to  the  possession  of  the  claim,  or  any  portion  thereof,  may,  without 
giving  further  notice,  file  a  certified  copy  of  the  judgment  roll  with 
the  register  of  the  land  office,  together  with  the  certificate  of  the 
surveyor  general  that  the  requisite  amount  of  labor  has  been  ex- 
pended or  improvements  made  thereon,  and  the  description  required 
in  other  cases,  and  shall  pay  to  the  receiver  five  dollars  per  acre  for 
his  claim,  together  with  the  proper  fees,  whereupon  the  whole  pro- 
ceedings and  the  judgment  roll  shall  be  certified  by  the  register  to 


302  TUNNEL    SITES    AND    BLIND   VEINS. 

the  Commissioner  of  the  General  Land  Office,  and  a  patent  shall  issue 
thereon  for  the  claim,  or  such  portion  thereof,  as  the  applicant  shall 
appear,  from  the  decision  of  the  court,  to  rightly  possess.  If  it  ap- 
pears from  the  decision  of  the  court  that  several  parties  are  entitled 
to  separate  and  different  portions  of  the  claim,  each  party  may  pay 
for  his  portion  of  the  claim,  with  the  proper  fees,  and  file  the  certifi- 
cate and  description  by  the  surveyor  general,  whereupon  the  register 
shall  certify  the  proceedings  and  judgment  roll  to  the  Commissioner 
of  the  General  Land  Office,  as  in  the  preceding  case,  and  patents 
shall  issue  to  the  several  parties  according  to  their  respective  rights." 

Reading  these  two  sections  together,  it  is  apparent  that  they  pro- 
vide for  a  judicial  determination  of  a  controversy  between  two  par- 
ties contesting  for  the  possession  of  "land  claimed  and  located  for 
valuable  deposits ;"  in  other  words,  the  decision  of  a  conflict  between 
two  mining  claims, — a  decision  which  will  enable  the  Land  Depart- 
ment, without  further  investigation,  to  issue  a  patent  for  the  land. 
A  tunnel  is  not  a  mining  claim,  although  it  has  sometimes  been  in- 
accurately called  one.  As  we  have  seen,  it  is  only  a  means  of  ex- 
ploration. The  owner  has  a  right  to  run  it  in  the  hope  of  finding  a 
mineral  vein.  When  one  is  found  he  is  called  upon  to  make  a  loca-  i 
tion  of  the  ground  containing  that  vein,  and  thus  creates  a  mining  j 
claim,  the  protection  of  which  may  require  adverse  proceedings.  As/ 
the  claimant  of  the  tunnel  he  takes  no  ground  for  which  he  is  called 
upon  to  pay,  and  is  entitled  to  no  patent.  A  judgment  in  adverse 
proceedings  instituted  by  him  (if  such  proceedings  were  required) 
might  operate  to  create  a  limitation  on  the  estate  of  the  applicant  for 
a  patent  to  the  mining  claim,  and,  thus  as  it  were,  engraft  an  excep- 
tion on  his  patent.  But,  taking  the  whole  surface,  the  applicant  is  re- 
quired to  pay  the  full  price  of  $5  per  acre,  with  no  deduction  be- 
cause of  the  tunnel.  The  statute  provides  for  no  reduction  on  ac- 
count of  any  tunnel.  The  tunnel  owner  might  be  said  to  have  estab- 
lished his  right  to  continue  the  tunnel  through  the  lode  claim  after 
patent, — a  right  which  he  undoubtedly  had  before  patent,  or  at 
least  before  entry.  There  is  no  statutory  warrant  for  placing  in 
a  patent  to  the  owner  of  a  lode  claim  any  limitation  of  his  title  by 
a  reservation  of  tunnel  rights.  In  Deffehack  v.  Hazvke,  115  U.  S. 
392,  406,  29  L.  ed.  423,  427,  6  Sup.  Ct.  Rep.  95,  loi,  we  said: 

"The  position  that  the  patent  to  the  plaintifif  should  have  contained 
a  reservation  excluding  from  its  operation  all  buildings  and  improve- 
ments not  belonging  to  him,  and  all  rights  necessary  or  proper  to 
the  possession  and  enjoyment  of  the  same,  has  no  support  in  any 
legislation  of  Congress.  The  land  officers,  who  are  merely  agents  of 
the  law,  had  no  authority  to  insert  in  the  patent  any  other  terms  than 
those  of  conveyance,  with  recitals  showing  a  compliance  with  the  law 
and  the  conditions  which  it  prescribed." 

Other  limitations  in  the  full  title  granted  by  a  patent  for  a  mineral 
claim  are  recognized  in  the  statutes.    Thus,  by  §  2339  (U.  S.  Comp. 


LOCATION.  303 

Stat.  1901,  p.  1437),  which  is  found  in  the  same  chapter  as  the  other 
sections  quoted,  the  one  devoted  to  "Mineral  Lands  and  Mining  Re- 
sources," it  is  provided  that : 

"Whenever,  by  priority  of  possession,  rights  to  the  use  of  water 
for  mining,  agricuUural,  manufacturing,  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognized  and  acknowledged 
by  the  local  customs,  laws,  and  the  decisions  of  courts,  the  possessors 
and  owners  of  such  vested  rights  shall  be  maintained  and  protected 
in  the  same ;  and  the  right  of  way  for  the  construction  of  ditches  and 
canals  for  the  purposes  herein  specified  is  acknowledged  and  con- 
firmed." 

But  it  has  never  been  supposed  that  the  owner  of  any  of  these 
rights  was  compelled  to  adverse  an  application  for  a  patent  for  a  min- 
ing claim,  for  they  are  not  "mining  claims." 

The  decisions  on  the  question  of  the  duty  of  the  tunnel  owner  to 
adverse  the  application  of  the  lode  claimant  are  not  harmonious.  In 
Bodie  Tunnel  &  Min.  Co.  v.  Bechtel  Consol.  Min.  Co.  i  Land.  Dec. 
584,  Secretary  Kirkwood  held  that  a  tunnel  location  was  a  mining 
claim  and  necessitated  adverse  proceedings  to  protect  its  rights  as 
against  an  applicant  for  a  lode  claim  ( see  also  Back  v.  Sierra  Nevada 
Consol.  Min.  Co.  2  Idaho,  420,  17  Pac.  83),  while  the  supreme  court 
of  Colorado,  in  Corning  Tunnel  Co.  v.  Pell,  4  Colo.  507,  denied  the 
right  of  a  tunnel  owner  to  adverse  the  application  for  a  patent  for  a 
lode  claim  where  the  lode  had  not  been  discovered  in  the  tunnel,  and 
the  discovery  shaft  was  not  on  the  line  of  the  tunnel.  Lindley,  §  725, 
referring  to  the  decision  in  Enterprise  Min.  Co.  v.  Rico-Aspen 
Consol.  Min.  Co.  167  U.  S.  108,  42  L.  ed.  96,  17  Sup.  Ct.  Rep.  762, 

said : 

"In  the  light  of  this  decision  and  the  one  which  it  affirms,  the  rule 
may  be  thus  formulated :  Where  a  lode  claimant  applies  for  a  patent 
to.  a  location  embracing  a  lode  which  has  previously  been  discovered 
in  the  tunnel,  the  tunnel  claimant  will  be  compelled  to  adverse  to 
protect  his  rights.  A  right  in  the  particular  lode  inures  to  the  tunnel 
proprietor  immediately  upon  its  discovery  in  the  tunnel,  which  right 
is  essentially  adverse  to  the  lode  applicant ;  but  where  there  has  been 
no  discovery  in  the  tunnel,  and  it  cannot  be  demonstrated  that  the 
lode  will  be  cut  by  the  tunnel  bore,  there  is  no  necessity  for  an  ad- 
verse claim." 

Without  further  review  of  the  conflicting  authorities,  it  would 
seem  that  whatever  may  be  the  propriety  or  advantage  of  an  adverse 
suit,  one  cannot  be  adjudged  necessary  when  Congress  has  not  spe- 
cifically required  it.  Until  the  discovery  of  a  lode  or  vein  within  the 
tunnel,  its  owner  has  only  a  possibility.  He  is  like  an  explorer  on 
the  surface.  Adverse  proceedings  are  called  for  only  when  one 
mineral  claimant  contests  the  right  of  another  mineral  claimant. 

If  the  defendant  was  not  estopped  by  a  failure  to  institute  adverse 


304  TUNNEL    SITES   AND   BLIND   VEINS. 

proceedings,  then  tlie  trial  court  erred  in  striking  out  the  parts  of 
the  answer  in  reference  to  the  date  of  plaintiff's  discovery,  and  the 
judgment  of  the  court  of  appeals  was  right. 

This  conclusion  avoids  the  necessity  of  any  inquiry  as  to  the  effect 
of  the  alleged  estoppel,  and  the  judgment  of  the  Circuit  Court  of 
Appeals  is  affirmed. 


CHAPTER  VI. 

ANNUAL    LABOR    OR    IMPROV'EMENTS    AND    THE    ABANDONMENT,    FOR- 
FEITURE AND  RESUMPTION  OF  WORK  ON  LODE  AND  PLACER  CLAIMS. 

Section  1. — The  Annual  Labor  and  Improvements  Eequirement. 


FEDERAL  STATUTE. 

Sec.  2324.  *  *  *  On  each  claim  located  after  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  and  until  a  patent  has  been  issued  there- 
for, not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed  or 
improvements  made  during  each  year.  On  all  claims  located  prior  to  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  ten  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  by  the  tenth  day  of  June, 
eighteen  hundred  and  seventy-four,  and  each  year  thereafter,  for  each  one 
hundred  feet  in  length  along  the  vein  until  a  patent  has  been  issued  therefor; 
but  where  such  claims  are  held  in  common,  such  expenditure  may  be  made 
upon  any  one  claim ;  and  upon  a  failure  to  comply  with  these  conditions  the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to  relocation 
in  the  same  manner  as  if  no  location  of  the  same  had  ever  been  made,  pro- 
vided that  the  original  locators,  their  heirs,  assigns,  or  legal  representatives, 
have  not  resumed  work  upon  the  claim  after  failure  and  before  such  location. 
Upon  the  failure  of  any  one  of  several  co-owners  to  contribute  his  proportion 
of  the  expenditures  required  hereby,  the  co-owners  who  have  performed  the 
labor  or  made  the  improvements  may,  at  the  expiration  of  the  year,  give  such 
delinquent  co-owner  personal  notice  in  writing  or  notice  by  publication  in  the 
newspaper  published  nearest  the  claim  for  at  least  once  a  week  for  ninety 
days,  and  if  at  the  expiration  of  ninety  days  after  such  notice  in  writing  or 
by  publication  such  delinquent  should  fail  or  refuse  to  contribute  his  propor- 
tion of  the  expenditure  required  by  this  section  his  interest  in  the  claim  shall 
become  the  property  of  his  co-owners  who  have  made  the  required  expendi- 
tures.   Rev.  St.  U.  S.  §  2324.' 


(a)     Scope  of  State  Legislation  and  of  District  Rules. 

NORTHMORE  v.  SIMMONS  et  al. 

1899.     Circuit  Court  of  Appeals.     38  C.  C.  A.  211,  97  Fed.  386, 

Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 
Gilbert,  Circuit  Judge.- — The  appellant  was  the  complainant  in 
a  bill  in  which  he  alleged  that  on  January  9,  1897,  he  made  a  discov- 

'  'The  annual  expenditure  to  the  amount  of  $100  required  by  section  2324, 
Revised  Statutes,  must  be  made  upon  placer  as  well  as  lode  locations."— Land 
Office  Mining  Regulations,  rule  25.  For  a  decision  to  the  same  eflfect,  see 
Carney  v.  Arizona  G.  M.  Co.,  65  Cal.  40,  2  Pac.  734. 

^  Parts  of  the  majority  ooinion  and  parts  of  the  dissenting  opinion  are 
omitted. 

305 
20 — Mining  Law 


306  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

ery  of  mineral-bearing  quartz  in  place  in  the  Mojave  mining  district, 
in  the  state  of  California,  and  that  he  duly  located  the  same ;  that 
there  was  a  mining  regulation  in  said  mining  district  which  provided 
that,  "within  ninety  days  of  location,  a  shaft  shall  be  sunk  or  a 
tunnel  run  to  a  depth  of  not  less  than  ten  feet  from  the  apex  of 
the  ledge  of  mineral-bearing  quartz ;  otherwise,  the  claim  shall  be 
subject  to  relocation" ;  that  upon  April  lo,  1897,  the  defendants  en- 
tered upon  the  complainant's  said  claim,  and  took  possession  thereof 
and  located  the  same,  contending  that  the  complainant's  rights  were 
forfeited  by  reason  of  his  failure  to  comply  with  the  said  mining 
regulation."  On  a  demurrer  to  the  bill  for  want  of  equity,  the  bill 
was  dismissed.  The  sole  question  presented  upon  the  appeal  is 
whether  the  regulation  of  the  Mojave  mining  district  requiring  cer- 
tain work  to  be  done  within  90  days  after  location  is  valid.  *  *  * 
We  are  of  the  opinion  that  section  2324  [Rev.  St.  U.  S.]  was 
intended  to  prescribe  the  minimum  amount  of  expenditure  in  labor 
or  improvements  which  was  exacted  by  the  United  States  within  a 
maximum  period,  and  to  leave  to  state  legislatures  or  local  mining 
districts  the  power  to  make  such  reasonable  regulations  as  they 
might  deem  advisable,  within  the  prescribed  limit;  such  regula- 
tions to  be  always  subject  to  the  provision  of  the  statute  that  at  least 
the  expressed  yearly  amount  in  work  or  improvement  must  be  ex- 
pended upon  the  claim,  and  that,  at  most,  the  time  for  expending 
the  same  shall  not  be  extended  beyond  the  designated  year.  This, 
we  think,  is  clearly  implied  in  the  language  of  the  statute.  Miners 
are  therein  authorized  to  make  regulations  governing  the  "amount  of 
work  necessary  to  hold  possession  of  a  mining  claim."  The  amount 
of  work  can  be  regulated  only  by  increasing  or  diminishing  it.  The 
diminution  of  it  is  expressly  prohibited.  There  shall  be  "not  less 
than  one  hundred  dollars'  worth"  per  annum.  It  follows  that  the 
miners  may  regulate  the  amount  by  increasing  it.  If  the  amount 
may  be  increased  above  that  which  is  required  by  the  statute  of  the 
United  States,  no  reason  is  perceived  why  the  time  may  not  be 
abridged  within  which  a  portion  of  it  is  to  be  done,  or  why  any  other 
reasonable  regulation  may  not  be  required  to  be  complied  with  with- 
in a  shorter  time  than  a  year.  The  statute  of  the  United  States  exacts 
no  discovery  shaft,  nor  any  work,  as  a  condition  to  the  location  of  a 
claim,  or  the  initiation  of  the  right  of  a  locator.  The  right  of  a  state 
legislature  to  impose  such  additional  work  has  uniformly  been  recog- 
nized. No  difference  in  principle  is  discernible  between  the  require- 
ment that  such  discovery  work  shall  be  made  as  an  incident  to  the 
location,  and  the  requirement  that  after  location  it  shall  be  made  as  a 
condition  to  the  subsistence  of  the  same.  In  either  case  burdens  are 
imposed  upon  the  locator  in  addition  to  the  "requirements"  of  the 
United  States  statute.  In  neither  case  is  the  requirement  that  a 
shaft  be  sunk,  whether  it  be  denominated  a  "discovery  shaft,"  or 
whether  it  be  known  by  any  other  name,  in  conflict  with  the  express 


REQUIREMENT.  3^7 

provisions  of  that  statute.  The  statute  was  not  intended  to  interfere 
with  the  rights  of  the  states  or  of  the  local  mining  districts.  It  was 
intended  to  express  the  most  liberal  terms  on  which  the  United  States 
would  part  with  its  right  in  mining  claims.  No  state  legislature  nor 
local  mining  regulation  may  grant  more  favorable  terms  than  those 
which  are  demanded  by  the  statute.  It  contains  the  full  extent  of 
the  "requirements"  of  the  United  States.  There  shall  be  expended 
upon  the  claim  at  least  $ioo  per  annum.  No  limit  is  placed  upon  the 
amount  of  work  above  $ioo  which  may  by  local  mining  rule  be  re- 
quired from  the  locator.  To  provide  that  the  assessment  work  shall 
be  $200  per  annum  is  not  in  conflict  with  the  statute ;  neither  is  there 
a  conflict  if  one-half  of  that  amount  of  work  be  required  within  one- 
half  of  the  time.  In  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct. 
560,  the  supreme  court  recognized  the  validity  of  a  statute  of  Colo- 
rado (Gen.  Laws  Colo.  1877,  p.  630)  declaring  that  one  of  the  essen- 
tial acts  of  locating  a  claim  should  consist  in  sinking  a  discovery 
shaft  upon  the  lode.    *    *    * 

A  decision  directly  in  point  is  that  of  the  supreme  court  of  Nevada 
in  the  recent  case  of  Sissons  v.  Sommers,  55  Pac.  829,  in  which 
the  court  had  under  consideration  the  provisions  of  the  act  of  the 
legislature  of  that  state  (Laws  1897,  p.  103).  The  first  section  of 
the  act  prescribed  the  method  of  locating  a  mining  clami.  It  de- 
clared that  it  should  consist  (i)  in  "defining  the  boundaries  of  the 
claim  in  the  manner  hereinafter  described,"  and  (2)  "posting  a  no- 
tice of  such  location  at  the  point  of  discovery."  The  second  sec- 
tion provided  that  before  the  expiration  of  90  days  from  the  postmg 
of  the  notice  "the  locator  must  sink  a  discovery-shaft  upon  the 
claim  located  to  the  depth  of  at  least  ten  feet  from  the  lowest  part 
of  the  rim  of  such  shaft  at  the  surface,  or  deeper  if  necessary,_  to 
show  by  such  work  a  lode  deposit  in  place."  It  was  a  provision 
identical  with  the  regulation  of  the  Mojave  mining  district  which 
is  involved  in  this  case,  in  that  it  required  the  act  to  be  done  with- 
in 90  days  after  location.  The  court,  in  a  carefully  considered 
opinion,  said : 

"We  think  the  legislature  may  require  a  reasonable  additional  amount  of 
work  to  be  done  annually,  and  a  reasonable  amount  of  work  to  complete  the 
location,  or,  after  location,  a  reasonable  additional  amount  of  work  withm  a 
reasonable  time,  less  than  the  time  named  by  congress  for  the  annual  ex- 
penditure, as  a  condition  to  the  continuance  of  the  right  acquired  by  the  loca- 
tion of  the  mine." 

The  appellant  relies  upon  Sweet  v.  Webber,  7  Colo.  443,  4  Pac. 
752,  and  Original  Co.  of  W.  &  K.  v.  Winthrop  Min.  Co.,  60  Cal. 
631.  The  first  case  goes  no  further  than  to  hold  that  neither  by  a  rule 
of  miners  nor  by  a  state  statute  can  a  location  be  maintained  upon 
the  expenditure  of  less  than  $100  per  annum,  as  required  by  the 
United  States  statutes,— a  proposition  that  is  not  disputed  and  is 


3o8  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

not  involved  in  this  case.  The  second  case  holds  that  a  local  reg- 
ulation providing  for  forfeiture  of  a  claim  upon  the  failure  of  the 
locator  to  perform  some  work  upon  it  every  60  days  was  in  con- 
flict with  the  law  of  congress,  and  therefore  void.  The  reasoning 
upon  which  this  conclusion  is  reached  is  not  stated  in  the  opinion. 
It  is  opposed,  not  only  to  what  we  conceive  to  be  the  plain  meaning 
of  the  statute,  but  to  the  weight  of  authority.  Certain  decisions 
are  also  cited,  such  as  Belk  v.  Meagher,  3  Mont.  65,  which  sus- 
tain the  proposition  that  a  mining  claim  may  not  be  forfeited  until 
the  expiration  of  the  period  which  congress  has  fixed  for  the  per- 
formance of  the  annual  assessment  work,  but  they  are  all  cases  in 
which  the  law  of  the  United  States  alone  was  involved.  In  none 
of  them  was  there  a  question  of  rights  under  a  state  law  or  a 
miners'  regulation,  and  in  none  of  them  was  the  question  which  is 
now  before  the  court  even  remotely  involved.  Their  inapplicability 
to  the  present  discussion  is  too  apparent  to  require  further  com- 
ment. We  find  no  error  in  the  ruling  of  the  circuit  court,  and  the 
decree  will  be  affirmed. 

Ross,  Circuit  Judge  (dissenting).    *    *    * 

The  validity  of  this  local  rule  is  the  sole  question  in  the  case. 
It  is  conceded  in  the  opinion  of  the  majority  of  this  court  that  a 
similar  rule  was  held  invalid  by  the  supreme  court  of  California 
in  the  case  of  Original  Co.  of  W.  &  K.  v.  Winthrop  Min.  Co.,  60 
Cal.  631  ;  but  the  prevailing  opinion  disapproves  that  decision,  and 
declares  it  to  be  not  only  contrary  to  "the  plain  meaning  of  the 
statute  [of  the  United  States],  but  to  the  weight  of  authority." 
In  my  judgment,  the  exact  reverse  is  true.  The  decision  of  the 
supreme  court  of  California  thus  criticised  and  disapproved  gives 
force  and  effect  to  the  federal  statute,  and  holds  invalid  a  local  rule 
of  a  mining  district  inconsistent  therewith.  This  is  not  only  in 
accord  with  the  express  language  of  the  United  States  statute  itself, 
and  with  the  text  writers,  but  with  every  decision  of  the  courts 
that  has  come  under  my  observation.  Not  a  single  decision  cited 
and  relied  upon  in  the  prevailing  opinion,  in  my  judgment,  at  all 
supports  the  conclusion  therein  announced ;  and  with  the  exception 
of  some  dicta  taken  from  the  latter  portion  of  the  opinion  of  the 
supreme  court  of  Nevada  in  the  case  of  Sissons  v.  Sommers,  55  Pac. 
829,  there  is  nothing  in  the  language  of  any  of  them  that  gives  any 
support  to  the  conclusion  reached  by  the  majority  of  this  court. 
The  federal  statute,  as  has  been  shown,  fixes  the  ist  day  of  Jan- 
uary succeeding  the  date  of  the  location  as  the  commencement  of 
the  year  within  which  the  required  work  shall  be  done.  The  loca- 
tion here  in  question  having  been  made  on  the  9th  day  of  January, 
1897,  the  time  thus  fixed  by  the  legislation  of  congress  within  which 
the  locator  was  required  to  perform  at  least  $100  worth  of  work 
or  make  $100  worth  of  improvements  commenced  on  the  ist  day  of 


REQUIREMENT.  309 

January,  1898,  and  extended  for  the  period  of  one  year.  Yet 
the  local  rule  of  the  mining  district  in  question  declares  forfeited 
the  rights  of  the  locator  unless  within  90  days  after  making  his 
location  a  shaft  be  sunk  or  a  tunnel  run  to  a  depth  of  not  less 
than  10  feet  from  the  apex  of  the  ledge  of  mineral-bearing  quartz ; 
and  this  forfeiture  the  defendants  to  the  present  suit  asserted, 
and  it  is  now  sustained  by  this  court.  Thus,  by  a  local  rule  of 
the  mining  district,  the  locator's  rights  to  the  claim  that  he  located 
in  all  respects  in  accordance  with  the  law  is  declared  forfeited 
before  the  commencement  of  the  period  fixed  by  the  act  of  congress 
within  which  the  annual  assessment  work  is  required  ta  be  done.  It 
is  difficult  to  see  how  there  could  be  any  greater  inconsistency 
between  two  rules  than  is  here  shown.  *  *  *  Nothing  can  be 
plainer,  in  my  opinion,  than  that  the  time  fixed  by  congress  for 
the  performance  of  the  work  and  improvements  it  requires  can- 
not be  taken  away,  shortened,  or  in  any  way  modified  by  any  state 
legislation,  or  by  any  local  rule  or  regulation  of  a  mining  district. 
To  the  extent  that  congress  legislates  on  the  subject,  its  act  is 
binding  and  controlling.  The  acts  of  congress,  however,  in  ex- 
press terms  authorize  state  legislation  and  the  making  of  local 
rules  and  regulations  by  the  various  mining  districts  not  incon- 
sistent with  its  own  act.  For  example,  congress  not  having  de- 
clared what  should  constitute  a  "discovery"  of  a  mineral-bearing 
vein  or  lode,  or  the  character  or  extent  of  the  work  necessary 
to  be  done  to  disclose  such  vein  or  lode  in  place,  it  is  entirely 
competent  for  the  states  to  legislate  upon  that  subject,  and  for  the 
various  mining  districts  to  make  rules  and  regulations  in  respect 
thereto  not  inconsistent  with  federal  or  state  law.     '^     *  _  * 

The  discovery  shaft  and  the  various  equivalents  provided  for  by 
the  several  state  enactments  constitute  a  part  of  the  process  of 
location  (Morr.  Min.  Rights  [8th  Ed.]  p.  27;  i  Lindl.  Mines 
[§343],  supra),  and,  being  consistent  with  the  acts  of  congress,  are 
valid,  for  the  reason  already  stated.  It  was  such  an  act  that  was  the 
subject  of  consideration  in  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup. 
Ct.  560.    *    *    * 

In  California  there  is  no  statute,  nor  was  there  any  rule  or  reg- 
ulation of  the  Mojave  mining  district,  requiring  any  development 
work  prior  to,  and  as  a  condition  of,  a  valid  location.  The  bill  in 
the  present  case  shows  that  the  complainant  perfected  his  loca- 
tion. The  annual  work  necessary  to  maintain  and  hold  that  loca- 
tion is  an  altogether  different  thing.  This  distinction  is  recog- 
nized and  clearly  pointed  out  by  Mr.  Lindley  in  sections  623  and 
626,  and  the  failure  to  observe  it  constitutes,  in  my  judgment,  the 
error  in  the  opinion  and  judgment  from  which  I  dissent.  The  per- 
formance of  this  annual  assessment  work  is  called  by  the  miners 
a  "representation"  of  the  mine,  and,  when  performed  for  a  given 
period,  the  mine  is  said  to  be  "represented."     Belk  v.  Meagher,  3 


3IO  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

Mont.  65,  'J']-,  2  Lindl.  Mines,  p.  775;  Barringer  &  A.  Mines  &  M., 
supra.  Congress  having  legislated  in  respect  to  that  annual  as- 
sessment work,  its  provisions  are  paramount,  and  any  and  every- 
thing that  conflicts  with  them  is  void,  be  it  a  rule  or  regulation 
of  a  mining  district  or  a  statute  of  a  state.  For  the  reasons  here 
given,  I  respectfully  dissent  from  the  opinion  and  judgment  of  the 
majority  of  the  court. 


(b)     What  Will  Serve  as  Annual  Labor  and  Improvements. 

MATTINGLY  et  al.  v.  LEWISOHN. 

1893.     Supreme  Court  of  Montana.     13  Mont.  508,  35  Pac.  iii. 

Action  by  James  P.  Mattingly  and  others  against  Leonard  Lew- 
isohn  to  determine  the  right  oi  possession  to  a  quartz  lode  mining 
claim.  From  a  judgment  for  plaintiffs,  and  an  order  denying  a  new 
trial,  defendant  appeals.     Affirmed. 

Harwood,  J.^ — *     *     * 

Lastly,  instruction  No.  6  is  attacked  as  erroneous  because  the  jury 
are  thereby  told  that:  "In  estimating  the  amount  of  work  or  im- 
provements, the  test  is  the  reasonable  value  thereof,  not  what  was 
paid  for  it,  or  what  the  contract  price  was,  but  it  depends  entirely 
upon  whether  or  not  said  work  or  improvements  were  reasonably 
worth  the  sum  of  $100."  In  this  connection,  appellant's  counsel 
argue  that  the  "intrinsic  value  or  worth  of  the  property  may  be  noth- 
ing at  all.  If  the  amount  of  labor  put  into  it  was  worth  $100,  it  is 
sufficient."  We  do  not  regard  the  language  of  the  instruction  fairly 
susceptible  of  a  construction  antagonistic  to  the  view  of  appellant's 
counsel.  Indeed,  it  seems  to  us  that  the  court  is  in  accord  with 
them,  in  saying  to  the  jury.  "In  estimating  the  amount  of  work  or 
improvements,  the  test  is  the  reasonable  value  thereof."  The  court 
here  said  to  the  jury,  it  is  the  reasonable  value  of  the  work  or  im- 
provements which  you  must  consider.  The  court  certainly  did  not, 
in  that  instruction,  say  that  the  value  of  the  claim,  with  such  work 
or  improvements  thereon,  or  the  value  of  the  work  or  improvements 
to  the  claim,  was  the  criterion  for  ascertaining  whether  the  require- 
ments of  the  law  had  been  fulfilled  ;  and  we  do  not  think  a  jury  would 
be  misled  in  construing  or  applying  the  language  used  by  the  court, 
especially  in  view  of  the  fact  that  the  evidence  on  that  point  is 
directed  to  the  ascertainment  of  the  value  of  the  work  or  improve- 
ments put  upon  the  mine,  irrespective  of  the  value  of  the  mining 
claim,  or  the  propriety  or  expediency  of  making  the  improvement 

'  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


REQUIREMENT.  3II 

or  working  it  in  the  manner  shown,  or  inquiring  how  much  it  en- 
hanced the  value  of  the  claim.  Upon  careful  consideration  of  these 
instructions,  in  the  light  of  the  criticism  brought  to  bear  on  them  by 
the  learned  counsel  for  appellant,  we  think,  taken  in  connection  with 
the  other  instructions  given,  they  plainly  and  sufficiently  state  the  law 
applicable  to  the  case,  as  developed  in  the  pleadings  and  evidence. 
The  conclusion  of  this  court,  upon  all  the  errors  assigned,  is  that 
judgment  of  the  court  below,  and  the  order  overruling  appellant's 
motion  for  a  new  trial,  should  be  affirmed. 


PROTECTIVE  MINING  CO  v.  FOREST  CITY  MINING  CO. 

1909.     Supreme  Court  of  Washington. 

51  Wash.  643,  99  Pac.  1033. 

Action  by  the  Protective  Mining  Company  against  the  Forest 
City  Mining  Company.  From  a  judgment  for  plaintiff,  defendant 
appeals.    Affirmed. 

Chadwick,  J.* — *     *     * 

3.  It  is  clearly  shown  that  appellant  did  not  perform  its  assess- 
ment work  for  the  year  1906  in  the  manner  and  to  the  value  as  re- 
quired by  law.  It  is  true  it  paid  the  sum  of  $500  to  parties  whom 
it  had  no  doubt  employed  in  good  faith,  but  who  did  no  more  than 
go  upon  the  ground  and  make  pretense  of  doing  the  work.  This  is 
not  a  compliance  with  the  law.  The  work  must  be  done  as  required 
in  the  federal  statutes  or  a  forfeiture  results.  It  follows  that  re- 
spondent's possession  was  lawful. 

The  decree  of  the  lower  court  is  affirmed. 


WAILES  V.  DAVIES  et  al. 
1907.     Circuit  Court,  D.  Nevada.     158  Fed.  667. 

Farrington,  District  Judge.^ — *     *     * 

5.  The  objection  that  extracting  ore  is  not  development  work  is 
entirely  immaterial.  The  language  of  the  statute  is  "on  each  claim 
located  after  the  loth  day  of  May,  1872,  and  until  a  patent  has  been 
issued  therefor,  not  less  than  one  hundred  dollars'  worth  of  labor 
shall  be  performed  or  improvements  made  during  each  year."  Rev. 
St.  §  2324  [U.  S.  Comp.  St.  1901,  p.  1426].  Obviously  the  purpose  of 

*  Part  only  of  the  opinion  is  given. 
^  Part  only  of  the  opinion  is  given. 


312  LABOR,    IMPROVEMENTS    AND    AEANDONMENT. 

this  Statute  is  to  require  the  mine  owner  to  evidence  his  good  faith 
by  performing  $ioo  worth  of  labor  on  each  claim  each  year  until 
patent  issues.  The  statute  does  not  require  any  particular  character 
of  labor;  it  does  not  require  that  the  work  shall  be  wisely  and  ju- 
diciously done ;  nor  does  it  say  how  the  work  shall  be  performed. 
The  fact  is,  the  better  the  mine,  the  greater  the  portion  of  labor 
which  is  devoted  exclusively  to  the  extraction  of  ore;  and  the  ideal 
mine  is  one  in  which  no  prospecting  or  development  work  is  neces- 
sary, where  no  work  is  required  except  the  extraction  of  ore,  and 
the  depletion  of  the  treasure,  which  is  the  sole  value  of  the  mine. 
If  $iQO  worth  of  labor  in  the  nature  of  mining  is  performed  on  a 
claim  by  the  owner,  whether  the  work  is  beneficial  or  not,  there  can 
be  no  forfeiture.  The  character  of  labor  becomes  material  when  it 
is  performed  without  the  boundaries  of  the  claim.  In  that  event, 
the  labor  must  tend  to  the  development  or  improvement  of  the  min- 
ing claim  for  which  it  is  designed,  otherwise  it  will  not  count. 

6.  Complainant  earnestly  contends  that  this  work  was  not  done  by 
or  under  the  authority  of  the  company ;  that  Mr.  Lay,  in  1904,  was 
neither  an  agent  nor  an  officer  of  the  company ;  that  he  had  no  inten- 
tion of  doing  the  assessment  work,  and  consequently  the  work  on  the 
three  claims  cannot  inure  to  the  benefit  of  the  company  or  defendant 
Davies.  Mr.  Lay  testifies  that  he  was  neither  an  officer  nor  an  agent 
of  the  Whalen  Consolidated  Copper  Mining  Company  during  1904 
and  the  three  preceding  years ;  that  he  had  no  authority  from  the 
company,  and  was  on  the  ground  simply  as  a  stockholder  represent- 
ing himself.    *    *    * 

The  federal  act  in  relation  to  the  performance  of  annual  labor  says 
nothing  as  to  the  person  by  whom  it  shall  be  performed.  The  obvi- 
ous purpose  of  the  law  is  to  exact  work  as  an  evidence  of  good  faith 
on  the  part  of  the  owner,  and  also  to  discourage  the  holding  of  min- 
ing claims  without  development  or  intention  to  develop,  to  the  ex- 
clusion of  others  who  could  and  would  improve  such  ground  if  they 
had  opportunity.  Manifestly,  the  annual  work  must  be  performed 
by  the  owner,  at  his  instance,  by  some  one  in  privity  with  him,  or 
by  some  one  who  holds  an  equitable  or  beneficial  interest  in  the  prop- 
erty. Work  by  such  a  person  will  inure  to  the  benefit  of  the  claim. 
2  Lindley  on  Mines,  §  666 ;  Jupiter  Mg.  Co.  v.  Bodie  Con.  Mg.  Co. 
(C.  C.)  II  Fed.  666;  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106; 
Godfrey  v.  Faust,  18  S.  D.  567,  571,  loi  N.  W.  718;  Eberle  v.  Car- 
michael,  8  N.  M.  169,  42  Pac.  95 ;  Anderson  v.  Caughey,  3  Cal.  App. 
22,  84  Pac.  223,  225  ;  Dye  v.  Crary  (N.  M.)  85  Pac.  1038,  9  L.  R.  A. 
(N.  S.)  1136.  *    *    * 

It  is  undoubtedly  the  law,  as  complainant  contends,  that  a  corpora- 
tion is  an  entity  distinct  from  its  stockholders,  and  holds  its  property 
absolutely  as  a  natural  person  may.  The  stockholder  by  virtue  of  his 
ownership  of  the  stock  has  no  legal  title  to  any  of  the  property  of  the 
corporation.     The  deduction  which  complainant  makes  from  this  is 


REQUIREMENT.  313 

that  assessment  work  on  corporate  property  cannot  be  performed 
except  by  corporate  action ;  that  there  can  be  no  corporate  action  ex- 
cept by  the  trustees  or  directors  acting  formally  as  such,  or  by  action 
of  the  officers  of  the  company ;  that  Lay,  Shaw,  and  Leighton,  when 
they  performed  work  on  the  Prince  of  Wales,  Amazon,  and  Copper 
Nut  in  1904,  though  stockholders,  were  strangers  to  the  title,  and 
therefore  trespassers,  and  consequently  their  work  cannot  inure  to 
the  benefit  of  the  corporation.  I  cannot  concur  in  these  conclusions. 
There  can  be  corporate  action  which  is  not  formal  corporate  ac- 
tion.   *    *    * 

A  stockholder  is  not  altogether  a  stranger  to  the  title  to  the  cor- 
porate property.  ,He  has  an  equitable  or  beneficial  interest  therein. 
It  is  unnecessary  to  define  that  interest.  It  is  sufficient  to  say  the 
ownership  of  such  an  interest  predicates  a  right  in  the  owner  to  pro- 
tect that  interest ;  from  this  it  follows  that  he  has  also  the  right  to 
insist  that  the  corporate  property  shall  be  protected  from  fraudulent, 
tortious,  and  wrongful  injury,  conversion,  misappropriation,  or  de- 
struction. Dodge  V.  /Woolsey,  i8  How.  331,  341,  15  L.  Ed.  401  ; 
Wright  V.  Oroville  Mg.  Co.,  40  Cal.  20,  27;  4  Thompson  on  Corp. 
§  4520;  Helliwell  on  Corp.  §  411.  If  the  directors  and  officers  of  a 
mining  company  negligently  or  fraudulently  failed  to  do  the  requisite 
representation  work  on  the  company's  unpatented  claims,  and  there- 
after relocated  the  property  for  themselves,  a  court  of  equity  at  the 
instance  of  a  stockholder  would  undoubtedly  compel  restitution  of 
the  property.  It  is  difficult  to  see  why  work  performed  upon  such 
claims  by  a  stockholder  who  had  peaceably  entered  thereon  prior  to 
forfeiture  should  not  be  counted  as  representation  work,  if  performed 
at  the  proper  time.  These  considerations  lead  me  to  conclude  that 
a  stockholder  in  a  mining  company  has  such  a  beneficial  interest  in 
the  corporate  property  that  any  mining  work  done  by  him  on  the  un- 
patented claims  of  the  company  must  be  counted  as  representation 
worjc.  The  work  done  by  Mr.  Lay  on  the  Prince  of  Wales,  Copper 
Nut,  and  Amazon  in  1904  was  sufficient  to  protect  those  claims  from 
forfeiture  and  relocation.     *     *     *^^ 


COPPER  MOUNTAIN  MINING  &  SMELTING  CO.  v.  BUTTE 
&  CORBIN  CONSOL.  COPPER  &  SILVER  MINING  CO. 

1909.     Supreme  Court  of  Montana.     39  Mont.  487,  104  Pac.  542. 

Action  by  the  Copper  Mountain  Mining  &  Smelting  Company 
against  the  Butte  &  Corbin  Consolidated  Copper  &  Silver  Mining 
Company.    Judgment  for  defendant,  and  plaintiff  appeals.   Affirmed. 

^a  A  decree  in  favor  of  the  defendant  was  affirmed  in  Wailes  v.  Davies,  164 
Fed.  397. 


314  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

Brantly,  C.  J.^ — The  defendant,  claiming  to  be  the  owner  of 
certain  mining  ground  in  Jefferson  county  under  quartz  locations 
designated  as  the  Mammoth,  Rarus,  Tucker,  Anaconda,  and  Big 
Butt  quartz  mining  claims,  applied  to  the  United  States  for  patents 
therefor.  The  plaintiff,  claiming  a  prior  right  to  a  portion  of  the 
ground  under  quartz  locations  designated  as  the  Florence,  Jack  Tay- 
lor, Elaine,  Tyrant,  Sailor  Boy,  Stella,  Forest,  Black  Horse,  and 
Twin  Boy,  filed  its  adverse  claims  in  the  United  States  Land  Office, 
and  brought  this  action  to  determine  the  right  to  the  possession  of 
the  portion  in  controversy  in  pursuance  of  the  requirements  of  the 
federal  statute.    *    *    * 

The  claims  of  plaintiff  here  involved  are  situated  on  the  side  of 
Valparaiso  Mountain  toward  the  southtwest.  On  that  side  is  a  deep 
gulch,  extending  along  the  base  of  the  mountain  from  the  southeast 
toward  the  northwest.  Beyond  this,  towards  the  southwest,  is 
a  low  hill  or  spur,  extending  back  into  the  mountains  toward  the 
west  and  northwest.  Upon  this  is  situated  the  M.  L.  claim,  sev- 
eral hundred  feet  distant  from  the  claims  in  controversy.  Other 
claims  of  the  plaintiff,  intervening  between  this  and  the  claims  in 
controversy,  lie  in  the  gulch  or  extend  into  it  from  both  sides  in 
such  a  manner  as  to  constitute  them  all  a  contiguous  group.  The 
defendant's  claims  also  lie  upon  the  side  of  Valparaiso  Mountain, 
toward  the  southwest,  and  hence  the  conflict  with  plaintiff's  claims. 
Prior  to  the  year  1905  the  annual  representation  work  necessary  to 
preserve  title  to  plaintiff's  claims  had  been  done  by  sinking  a  shaft 
near  the  bottom  of  the  gulch.  So  far  as  the  evidence  in  the  record 
shows,  this  shaft  was  so  situated  that  it  could  have  been  used  as 
a  rneans  of  developing  all  the  claims  in  a  group  and  for  the  extrac- 
tion of  ores  found  in  any  of  them.  During  that  year  the  plaintiff, 
having  concluded  that  the  continuance  of  the  work  at  this  point 
would  be  attended  with  a  greater  outlay  than  the  circumstances 
would  justify,  determined  to  transfer  its  operations  to  a  tunnel  which 
had  been  started  by  its  predecessors  on  the  M.  L.  claim  on  a  level 
about  42  feet  above  the  mouth  of  the  shaft  and  the  bottom  of  the 
gulch,  and  extending  toward  the  southwest.  For  that  and  the  fol- 
lowing year  the  representation  work  was  done  by  extending  this  tun- 
nel ;  and  so  it  was  continued  thereafter,  the  purpose  being,  as  stated 
by  an  officer  of  the  company,  to  intercept  a  vein  appearing  in  a  shaft 
which  had  theretofore  been  sunk  on  the  M.  L.  claim  from  the  top 
of  the  hill.  During  the  year  1906  the  tunnel  was  extended  146  feet 
in  the  same  general  direction.  Up  to  this  depth  it  is  parallel  with 
the  apparent  strike  of  the  vein  exposed  in  the  shaft  on  the  M.  L. 
claim.  Continued  in  this  direction  it  would  miss  the  vein  entirely 
and  pass  through  the  hill.  Subsequent  to  the  bringing  of  this  action 
its  direction  was  changed,  first  to  the  south  and  then  to  the  east, 

'  Part  of  the  opinion  is  omitted. 


REQUIREMENT.  315 

with  the  result  that  the  vein  in  the  M.  L.  was  finally  intercepted  at 
a  distance  of  more  than  500  feet  from  its  mouth.  If  driven  in  its 
final  direction,  it  would  reach  the  surface  of  the  hill  to  the  east  or 
northeast  on  a  level  42  feet  or  more  above  the  bottom  of  the  gulch. 
This  was  the  situation  of  afifairs  at  the  time  of  the  trial. 

Defendant's  evidence,  besides  showing  that  the  work  of  develop- 
ment, and  incidentally  that  of  representation  for  the  year  1906,  had 
all  been  done  in  the  tunnel  as  heretofore  stated,  and  that  this  was  the 
only  work  that  had  been  done  upon  any  of  the  group  of  claims, 
tended  strongly  to  show  that  the  tunnel  could  not,  within  the  range 
of  reasonable  possibility,  be  availed  of  to  develop  any  of  the  claims 
on  Valparaiso  Mountain.  The  contention  of  the  plaintiff  was,  and  it 
undertook  to  show  by  its  witnesses,  that  by  sinking  upon  the  vein 
at  the  point  of  its  interception  by  the  tunnel  it  could  drive  a  cross-cut 
or  drift  under  the  gulch  and  thus  develop  and  mine  the  claims  be- 
yond, and  that  the  tunnel  had  been  driven  wath  this  end  in  view 
There  is  no  controversy  but  that  the  expenditure  made  in  the  tun- 
nel in  1906  was  sufficient  in  amount  to  represent  all  the  claims  in  the 
group.  The  evidence  is  silent  as  to  whether  the  vein  intercepted  in 
the  tunnel  is  the  discovery  vein  of  the  M.  L. ;  and,  while  there  is 
some  evidence  tending  to  show  that  its  strike  is  in  the  general  direc- 
tion of  some  of  plaintiff's  claims  across  the  gulch,  there  is  none  fur- 
nishing a  substantial  basis  for  the  inference  that  it  crosses  the  gulch 
in  their  direction  or  that  tends  to  identify  it  with  any  vein  found  in 
any  of  them.  Many  witnesses,  practical  miners  and  mining  engi- 
neers, were  examined,  who  expressed  opinions  in  support  of  the 
claims  of  the  respective  parties,  giving  their  reasons  therefor.  The 
statements  of  these  witnesses  cannot  be  reconciled. 

It  is  now  well  settled  that  the  annual  expenditure  required  by  the 
federal  statute  to  preserve  the  title  to  mining  claims  may  be  made  in 
work  or  improvements  within  the  boundaries  of  the  claims  them- 
selves, or  upon  one  of  a  group  of  contiguous  claims,'  or  upon  adja- 

'  It  is  frequently  stated  that  the  claims  must  be  contiguous,  but  in  Altoona 
Quicksilver  M.  Co.  v.  Integral  Quicksilver  M.  Co.,  114  Cal.  100,  45  Pac.  1047, 
1049,  Temple,  J.,  for  the  court,  said : 

"The  fact,  however,  if  so  it  was,  that  the  claims  did  not  actually  touch  each 
other,  and  there  was  a  narrow  strip  of  land  between  the  locations,  would  not 
determine  the  question.  Mines  may  be  conceived  of  as  so  situated  that  the 
same  work  may  be,  and  appear  to  be,  expended  in  opening  or  developing  both 
mines,  although  they  are  not  actually  contiguous." 

If  the  claims  have  to  be  contiguous,  that  means  that  they  must  touch  at 
more  than  one  point.  "Where  several  claims  are  held  in  common,  the  annual 
assessment  work  for  all  may  be  done  upon  one  of  the  claims  or  upon  adjacent 
patented  land  or  even  upon  public  land  provided  that  the  claims  are  contigu- 
ous, and  that  the  work  is  for  the  benefit  of  all  of  them,  and  tends  to  develop 
them  all  and  to  facilitate  •  the  extraction  of  ore  therefrom.  *  *  *  Two 
tracts  of  land  which  touch  only  at  a  common  corner  are  not  contiguous." — 
Gilbert.  Circuit  Judge,  in  Anvil  Hydraulic  &  Drainage  Co.  v.  Code,  182  Fed. 
205.  105  C.  C.  A.  45. 


3l6  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

cent  patented  land,  or  even  upon  adjacent  public  land,  provided  only 
it  is  made  for  the  purpose  of  developing  the  claims  and  to  facilitate 
the  extraction  of  ore  therefrom.  Strasburger  v.  Beecher,  20  Mont. 
143,  49  Pac.  740;  Power  v.  Sla,  24  Mont.  243,  61  Pac.  468;  Hall  v. 
Kearny,  18  Colo.  505,  33  Pac.  373 ;  Smelting  Co.  v.  Kemp,  104  U.  S. 
636,  26  L.  Ed.  875  ;  Jackson  v.  Roby,  109  U.  S.  440,  3  Sup.  Ct.  301,  27 
L.  Ed.  990  ;8  2  Lindley  on  Mines,  629,  631.  In  Smelting  Co.  v.  Kemp, 
supra,  it  is  said :  "Labor  and  improvements  within  the  meaning  of  the 
statute  are  deemed  to  have  been  had  upon  a  mining  claim,  whether  it 
consists  of  one  location  or  several,  when  the  labor  is  performed  or  the 
improvements  are  made  for  its  development — that  is,  to  facilitate  the 
extraction  of  the  metals  it  may  contain — though,  in  fact,  such  labor 
and  improvements  may  be  on  ground  which  originally  constituted 
only  one  of  the  locations  as  in  sinking  a  shaft,  or  be  at  a  distance 
from  the  claim  itself,  as  where  the  labor  is  performed  for  the  turn- 
ing of  a  stream,  or  the  introduction  of  water,  or  where  the  im- 
provement consists  in  the  construction  of  a  flume  to  carry  off  the 
debris  or  waste  material.  It  would  be  absurd  to  require  a  shaft  to  be 
sunk  on  each  location  in  a  consolidated  claim  when  one  shaft  would 
suffice  for  all  the  locations."  The  language  used  by  the  court  evi- 
dently means  that,  if  the  work  done  on  one  of  the  claims  has  no  refer- 
ence to  the  other  claims  in  a  group  or  does  not  tend  to  develop  all 
of  them  in  conformity  with  a  general  plan  adopted  with  that  purpose 
in  view,  it  cannot  be  considered  as  work  done  upon  them  as  a  group 
or  consolidated  claim.  This  view  is  borne  out  by  the  decision  in 
Jackson  v.  Robey,  supra,  where  the  above  passage  is  quoted  in  sup- 
port of  a  statement  made  in  defining  the  meaning  of  the  statute  :  'Tn 
such  case  the  work  or  expenditure  must  be  for  the  purpose  of  de- 
veloping all  the  claims.  It  does  not  mean  that  all  the  expenditure 
upon  one  claim,  w^hich  has  no  reference  to  the  development  of  the 
others,  will  answer."  If  the  work  is  not  a  part  of  a  general  plan  hav- 
ing in  view  the  development  of  the  group  or  consolidated  claim,  so 
that  the  ore  may  be  more  readily  extracted,  and  the  work  has  no 
reasonable  adaptation  to  that  end,  then  no  matter  what  the  amount 
of  it  is,  it  cannot  be  said  to  have  been  done  in  the  development  of  the 

*"It  often  happens  that  for  the  development  of  a  mine  upon  which  several 
claims  have  been  located,  expenditures  are  required  exceeding  the  value  of  a 
single  claim,  and  yet  without  such  expenditures  the  claim  could  not  be  suc- 
cessfully worked.  In  such  cases  it  has  always  been  the  practice  for  the 
owners  of  different  locations  to  combine,  and  to  work  them  as  one  general 
claim ;  and  expenditures  which  may  be  necessary  for  the  development  of  all 
the  claims  may  then  be  made  on  one  of  them.  The  law  does  not  apply  to 
cases  where  several  claims  are  held  in  common,  and  all  the  expenditures 
made  are  for  the  development  of  one  of  them,  without  reference  to  the  de- 
velopment of  the  others.  In  other  words,  the  law  permits  a  general  system 
to  be  adopted  for  adjoining  claims  held  in  common,  and  in  such  case  the  ex- 
penditures required  may  be  made  or  the  labor  be  performed  upon  any  one  of 
them."  Field,  J.,  in  Jackson  v.  Roby,  109  U.  S.  440,  27  L.  ed.  990,  3  Sup.  Ct. 
301,  303-304. 


REQUIREMENT.  317 

group.  In  such  cases  it  is  usually  a  question  of  fact  for  the  court  or 
jury,  as  the  case  may  be,  to  say  upon  the  evidence  whether  the  re- 
quirements of  the  law  have  been  met. 

The  courts  are  reluctant  to  enforce  forfeitures.  He  who  claims 
such  a  penalty  to  defeat  the  title  of  his  adversary  must  plead  it  spe- 
cially, and,  besides,  must  establish  it  by  clear  and  convincing  proof. 
Strasburger  v.  Beecher,  supra.  Nevertheless,  when  it  appears,  as  in 
this  case,  that  the  representation  work  done  was  not  done  upon  all 
the  claims,  but  upon  one  only  of  the  group  for  the  alleged  benefit 
of  all,  then  the  burden  shifts,  and  the  requirement  that  the  work 
must  be  adapted  to  the  development  of  all  the  claims  and  was  in- 
tended for  that  purpose  must  be  met.  This  rule  is  recognized  by  all 
the  authorities,  so  far  as  they  have  been  called  to  our  attention.  Hall 
V.  Kearny,  supra ;  Copper  Glance  Lode,  29  Land  Dec.  Dep.  Int.  542 ; 
Lindley  on  Mines,  §  631.  It  is  primarily  a  question  within  the  prov- 
ince of  the  trial  court  to  determine  whether  the  proof  is  sufficiently 
clear  and  convincing  to  satisfy  the  requirement ;  and  in  equity  cases, 
such  as  this,  though  this  court  may  examine  the  evidence  and  deter- 
mine the  question  of  fact  for  itself  (Rev.  Codes,  §  6253),  yet  it  may 
not  overturn  the  findings  of  the  trial  court  unless  there  is  a  decided 
preponderance  of  the  evidence  against  them.  Bordeaux  v.  Bordeaux, 
32  Mont.  159,  80  Pac.  6;  Finlen  v.  Heinze,  32  Mont.  354,  80  Pac. 
918;  Watkins  v.  Watkins,  39  Mont.  367,  102  Pac.  860. 

Taking  into  consideration  the  position  of  the  M.  L.  claim,  with 
reference  to  the  others  in  the  group ;  the  fact  that  the  tunnel  is  across 
the  gulch  from  the  others  ;  that  it  is  on  a  level  above  the  bottom  of 
the  gulch  ;  that  it  extends  away  from  all  of  the  claims  in  controversy ; 
that  it  was  intended  primarily  to  intercept  the  vein  in  the  M.  L. 
claim  ;  that  it  does  not  appear  that  this  vein  traverses  any  of  the  other 
claims  or  even  crosses  the  gulch  in  their  direction ;  that  in  order  to 
render  the  tunnel  available  to  develop  any  of  them,  it  will  be  neces- 
sary to  sink  a  shaft  or  winze  to  a  depth  below  the  level  of  the  gulch 
and  drift  to  the  eastward  many  hundreds  of  feet ;  that  to  carry  out 
this  plan  it  will  be  necessary  to  install  heavy  and  expensive  machinery 
at  the  collar  of  the  proposed  shaft  or  winze,  to  raise  the  ores,  and 
waste  and  water  encountered,  to  the  level  of  the  tunnel  in  order  to 
convey  them  to  the  surface,  whereas  this  could  all  have  been  accom- 
plished with  less  expense  and  much  more  convenience  by  the  use  of 
the  shaft  in  the  gulch — taking  into  consideration  the  whole  of  the 
environment,  we  think  the  trial  court  was  justified  in  its  conclusion 
that  the  forfeiture  alleged  by  the  defendant  was  clearly  and  satis- 
factorily established.  The  conclusion  seems  unavoidable  that  the 
purpose  in  extending  the  tunnel  was  primarily  to  encounter  pay  ore 
in  the  M.  L.  claim,  and  that  it  could  not  reasonably  have  been  in- 


3l8  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

tended  as  a  part  of  any  general  plan  to  develop  the  claims  across  the 
gulch  or  any  of  them®^ 

Counsel  for  plaintiff  contends  that  it  appears  that  the  work  was 
done  by  the  plaintiff  on  the  M.  L.  in  good  faith  for  the  purpose  of 
developing  the  group  of  claims,  and  that  the  court  should  not  be  per- 
mitted to  substitute  its  own  judgment  as  to  the  wisdom  or  expediency 
of  the  method  employed  by  the  owner  in  adopting  the  plan  pursued. 
As  an  abstract  proposition  we  think  counsel  states  the  correct  rule. 
Mann  v.  Budlong,  129  Cal.  577,  62  Pac.  120;  Gear  v.  Ford,  4  Cal. 
App.  556,  88  Pac.  600.  Nevertheless,  the  purpose  for  which  the  work 
is  alleged  to  have  been  done  must  always  be  manifested  by  the  rela- 
tion which  it  bears  to  the  claim  itself.  If  the  plan  pursued  can  have 
no  reasonable  adaptation  to  its  alleged  purpose,  the  mere  assertion 
that  it  was  pursued  for  that  purpose  does  not  suffice,  even  though 
good  faith  in  its  pursuit  be  conceded. 

The  judgment  and  order  are  affirmed. 


HALL  V.  KEARNY  et  al. 

1893.     Supreme  Court  of  Colorado.     18  Colo.  505,  33  Pac.  373. 

Action  by  Stephen  W.  Kearny  and  James  H.  Nolan,  against 
George  W.  Hall  for  possession  of  a  certain  mining  claim.    From  a 

'a-  "To  make  work  done  on  a  tunnel  an  improvement  upon  another  mining 
claim  under  the  law  requiring  annual  labor,  the  work  must  have  been  done 
for  the  express  purpose  of  benefiting  such  claim,  and  for  its  development. 
Bryan  v.  McCaig,  10  Colo.  309,  15  Pac.  413.  If  plaintiff  did  an  insufficient 
amount  of  work  to  hold  its  entire  group,  yet  posted  notices  that  the  work 
on  each  claim  was  being  done  through  specific  tunnels,  it  could  not  there- 
after, when  certain  of  such  territory  became  valuable,  through  discovery  and 
development  by  others,  apply  the  work  to  such  particular  territory  only  in 
order  to  hold  it.  *  *  *  Where  several  contiguous  mining  claims  consti- 
tute a  group,  and  expenditures  are  made  upon  an  improvement  which  is  in- 
tended to  aid  in  the  development  of  all  so  held,  the  improvement  constitutes 
a  distinct  entity,  not  subject  to  physical  subdivision,  or  apportionment,  in  its 
application  to  the  claims  intended  to  be  benefited  by  it.  The  work  performed 
attaches  to  the  claims  collectively,  and  not  severally.  This  is  the  rule  clearly 
and  forcibly  announced  by  the  Secretary  of  the  Interior  in  Re  James  Car- 
retto  and  Other  Lode  Claims,  35  Land  Dec.  Dep.  Int.  361,  364.  It  is  there 
said :  'To  undertake  to  set  apart  or  apportion  a  physical  segment  or  section 
or  an  arbitrary  fractional  part  of  a  common  improvement,  and  to  credit  the 
value  thereof  to  a  particular  claim,  is  in  violation  of  the  theory  of  a  common 
benefit  accruing  from  a  common  improvement.  The  scheme  here  invoked 
for  adjusting  the  monetary  worth  of  the  benefit  derived  from  a  common 
improvement  is  on  its  face  unreasonable  and  leads  to  a  result  but  little  short 
of  absurd.  The  department  is  of  opinion  that  it  is  unwarranted  and  unau- 
thorized by,  and  contrary  to.  the  law.  *  *  *  j^  ^]^\^  q^  in  any  similar 
patent  proceeding,  where  a  part  of  the  group  is  applied  for  and  reliance  is 
had  upon  a  common  improvement,  the  Land  Department  should  be  fully  ad- 
vised as  to  the  total  number  of  claims   embraced  in   the  group   as  to  their 


REQUIREMENT.  319 

judgment  entered  on  the  verdict  of  a  jury  in  favor  of  plaintiffs,  de- 
fendant appeals.   Reversed. 

Kearny  and  Nolan,  claiming  to  be  the  owners  of  the  John  Ran- 
dolph and  Roscoe  lode  mining  claims,  both  conflicting  with  the 
Monitor  Extension  location,  instituted  this  suit  in  support  of  two 
adverse  claims  filed  by  them  against  Hall's  application  for  a  patent. 
The  answer  alleges  failure  by  plaintiffs  to  do  the  necessary  annual 
labor  on  the  Roscoe  and  Randolph  lodes  for  the  years  1883,  1884, 
and  1885,  and  the  subsequent  location  over  them  of  the  Monitor  Ex- 
tension lode. 

Hayt,  C.  J.^ — The  location  of  the  Monitor  Extension  lode  is  sub- 
sequent in  point  of  time  to  both  the  Roscoe  and  Randolph  locations, 
made  by  appellees,  Kearny  and  Nolan.  The  judgment  of  the  district 
court  in  favor  of  appellees  must  therefore  be  sustained,  unless  it 
appears  that  the  location  of  either  the  Roscoe  or  Randolph  lodes 
were  not  perfected  as  required  by  law,  in  the  first  instance,  or  that 
appellees  failed  to  keep  the  locations  good. 

The  principal  point  of  contention  in  the  court  below  grew  out  of 
the  forfeiture  claimed  by  Hall  because  of  the  alleged  failure  of  ap- 
pellees to  do  the  annual  labor  upon  their  claims  for  the  year  1884. 
Considerable  testimony  was  introduced  for  the  purpose  of  showing 
the  nature  and  extent  of  the  work  claimed  as  the  annual  labor  for 
the  Roscoe  and  John  Randolph  lodes  for  that  and  other  years.  The 
uncontradicted  evidence  shows  that  in  the  year  1883  appellees  com- 
menced a  tunnel  near  the  west  side  line  of  the  John  Randolph  loca- 
tion, and  extended  the  same  from  time  to  time,  until  a  distance  of  127 
feet  westward  was  reached.  The  greater  portion  of  this  tunnel  is 
upon  a  patented  mining  claim  known  as  the  "Nolan-Gilmer  Lode," 
and  at  the  time  the  property  of  appellees.  In  the  year  1884  appellees 
sank  an  incline  near  the  breast  of  this  tunnel,  and  upon  the  patented 
territory.  They  claim  that  the  work  in  this  tunnel  and  upon  the  in- 
cline was  done  for  the  purpose  of  developing  the  Roscoe  and  John 
Randolph  claims,  and  that  it  should  be  treated  as  a  compliance  with 
the  law  relating  to  annual  assessment  work.  The  appellant  denies 
that  the  work  was  done  for  this  purpose,  or  that,  as  a  matter  of  fact, 
it  in  any  way  inured  to  the  benefit  of  appellees'  claims,  or  either  of 
them.  All,  or  nearly  all,  the  work  claimed  as  annual  assessment 
work  for  the  years  1884  and  1885  was  done  within  the  territory  cov- 
ered by  the  Nolan-Gilmer  patent,  in  the  prosecution  of  this  tunnel 
and  incline.  Appellees  being  able  to  satisfy  the  jury  as  to  the  va- 
lidity of  their  locations.  Hall  could  acquire  no  adverse  rights  by  rea- 
son of  the  Monitor  Extension  location,  made  in  1885,  unless  appellees 

ownership  and  as  to  their  relative  situations  properly  delineated  upon  an  au- 
thenticated  plat  or  diagram.'  " — White,   J.,   in   Duncan  v.   Eagle   Rock  Gold 
I^Iining  and  Reduction  Co.,  48  Colo.  569,  111  Pac.  588,  594,  139  Am.  St.  288. 
°  The  statement  of  facts  is  abbreviated  and  part  of  the  opinion  is  omitted. 


320  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

had  forfeited  their  prior  rights  to  the  premises  by  a  faihire  to  do  the 
necessary  assessment  work  for  the  preceding  year. 

The  foregoing  statement  will  be  sufficient  to  show  the  importance 
of  having  the  jury  correctly  instructed  upon  the  question  of  for- 
feiture thus  raised.  Instruction  No.  5,  given  by  the  court  below, 
reads  as  follows :  "You  are  further  instructed,  if  Hall  claims  the 
Randolph  and  Roscoe  lodes  because  forfeited  by  reason  of  the  failure 
by  plaintiffs  to  do  the  annual  labor  thereon  in  1884,  the  burden  of 
proof  is  on  him  to  show,  by  a  fair  preponderance  of  testimony,  the 
work  which  plaintiffs  did  do  was  not  of  such  character  as  to  the  place 
where  done,  that  it  would  inure  to  the  benefit  of  said  Randolph  and 
Roscoe  lodes  as  annual  labor.''  Under  the  circumstances  of  this  case 
the  instruction  is  erroneous.  Although  the  burden  of  proving  a  for- 
feiture is  always  upon  the  party  relying  upon  the  same,  in  this  case 
this  burden  was  discharged,  prima  facie,  by  showing  that  no  work 
during  the  year  1884  had  been  done  upon  either  the  Randolph  or 
Roscoe  lodes,  or  within  the  surface  boundaries  of  either  of  these 
claims.  If  labor  was  in  fact  performed  upon  adjacent  property  that 
might  properly  be  considered  as  development  work  for  these  claims, 
as  contended,  it  devolved  upon  Kearny  and  Nolan,  and  not  upon 
Hall,  to  show  affirmatively  such  facts.  Appellees  attempted  to  meet 
this  requirement  by  showing  that  they  had  started  a  tunnel  near  the 
west  side  line  of  their  claims ;  the  west  side  lines  of  both  being  prac- 
tically the  same  at  this  point.  This  tunnel  was  extended  out  of  and 
away  from  the  claims  in  controversy  into  patented  territory,  in  which 
they  were  also  interested.  Under  these  circumstances  there  is  no  pre- 
sumption that  this  work  was  for  the  development  of  either  the  John 
Randolph  or  Roscoe  claims.  In  fact,  the  presumption  is  against  such 
contention,  and,  after  proof  that  the  annual  assessment  had  not  been 
done  within  the  surface  boundaries  of  these  locations,  it  was  incum- 
bent upon  appellees  to  show  that  such  work  as  had  been  done  else- 
where was  in  fact  intended  as  the  annual  assessment  upon  these 
claims,  and  was  of  such  a  character  as  that  it  would  inure  to  the 
benefit  thereof.  By  the  instruction  given  at  the  trial  this  burden  was 
placed  upon  appellant.  For  this  error  the  judgment  of  the  district 
court  must  be  set  aside. 

In  view  of  a  new  trial,  other  assignments  of  error  will  be  noticed. 
It  is  contended  that  under  no  circumstances  can  the  work  performed 
within  the  exterior  lines  embraced  within  the  Nolan  and  Gilmer  pat- 
ent be  taken  into  consideration  in  determining  whether  the  required 
labor  or  improvements  were  put  upon  the  claims  in  controversy.  In 
our  opinion  this  claim  of  counsel  is  unsound.  If  the  work  was  in 
fact  done  for  the  development  of  the  Randolph  and  Roscoe  claims,  it 
may  properly  be  considered  as  annual  assessment  work  for  such 
claims,  notwithstanding  the  fact  that  it  was  performed  outside  of 
the  exterior  lines  of  such  property.  In  the  case  of  Doherty  v.  Alor- 
ris,  17  Colo.  105,  28  Pac.  Rep.  85,  an  expenditure  incurred  in  con- 


REQUIREMENT.  321 

structing  a  wagon  road  across  adjacent  territory  to  a  mining  claim, 
for  the  purpose  of  better  developing  and  operating  such  claim,  was 
treated  as  a  compliance  with  the  law  relating  to  annual  assessment 
work.  In  the  case  of  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  it  was 
held  that  labor  and  improvements  might  be  considered  within  the 
meaning  of  the  statute  when  the  labor  was  performed  or  the  im- 
provements were  made  for  this  development,  though  in  fact  such 
labor  and  improvements  were  at  a  distance  from  the  claim.  The 
latter  opinion  had  reference  to  placer  claims,  and  it  was  said  that 
where  the  labor  was  performed  for  the  turning  of  a  stream,  or  the 
introduction  of  water  to  the  claim,  or  wdiere  the  improvement  con- 
sists in  the  construction  of  a  flume  to  carry  off  the  debris  or  waste 
material,  it  might  properly  be  considered  as  assessment  work.  Noth- 
ing is  said  in  either  of  the  opinions  in  the  cases  cited  with  reference 
to  whether  the  work  was  upon  patented  or  unpatented  property,  but 
we  think  it  would  be  unreasonable  to  hold  that  such  labor  and  im- 
provements would  not  avail  even  if  upon  patented  property.  Did  the 
work,  where  done,  tend  to  the  development  of  the  Randolph  and 
Roscoe  claims  ?  and  was  it  in  fact  performed  for  the  benefit  of  these 
locations?  are  the  controlling  questions  to  be  determined;  and  it  is 
immaterial  whether  the  improvement  is  upon  patented  or  unpatented 
property,  except  as  this  may  throw  light  upon  the  intention  of  the 
parties  in  doing  the  work.     *     *     * 

For  the  error  pointed  out  in  the  instructions,  the  judgment  must 
be  reversed. ^*^ 


FREDRICKS  v.  KLAUSER. 
1908.     Supreme  Court  of  Oregon.     52  Ore.  no,  96  Pac.  679. 

Sui,T  by  George  W.  Fredricks  against  Antone  Klauser.  From  a 
decree  for  defendant,  plaintiff  appeals.   Modified,  and  decree  entered. 

^"In  Anvil  Hydraulic  &  Drainage  Co.  v.  Code,  182  Fed.  205,  105  C.  C.  A. 
45,  where  plaintiffs  relocated  for  failure  of  defendant  to  perform  the  annual 
labor,  the  defendant  relied  on  the  construction  of  a  drain  two  miles  away 
from  the  claim  in  controversy  as  meeting  the  annual  labor  requirement.  The 
verdict  of  the  jury  and  the  judgment  in  ejectment  were  in  favor  of  the 
plaintiffs  and  in  affirming  the  judgment,  Gilbert,  Circuit  Judge,  said: 

"It  goes  without  saying  that  a  drain  two  miles  away  from  a  placer  claim, 
without  an  intention  to  extend  it,  does  not  tend  in  any  way  to  enhance  the 
money  value  of  that  claim,  and  is  of  no  use  whatever  in  prospecting,  develop- 
ing, or  operating  it.  On  the  other  hand,  it  is  conceivable  that  such  a  drain 
thus  begun  under  a  definite  plan  for  its  extension  through  a  series  of  claims 
might,  when  completed,  be  of  great  benefit  and  value  to  each.  In  such  a 
case  work  done  at  a  distance  from  any  one  of  the  claims  might  be  reckoned 
as  assessment  work  thereon,  since  it  would  tend  to  its  benefit  or  improvement. 
The  court  in  its  instructions  gave  the  plaintiff  in  error  the  benefit  of  all  its 
evidence  as  to  the  extent  of  the  work  done  on  the  drain,  its  intention  to  com- 
plete the  same,  and  the  resulting  benefit  to  the  claim  in  question. 

21 — Mining  Law 


322  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

Moore,  J.^^ — The  plaintiff  alleges  that,  for  the  time  the  High- 
land Chief  and  the  Gold  Dust  claims  were  severally  located,  he  and 
his  predecessors  in  interest  annually  expended  in  labor  and  im- 
provements upon  each  of  such  claims  a  sum  in  excess  of  $ioo.  '''  *  * 

Arbuckle  [plaintiff's  agent]  left  the  mines  May  i6,  1906,  going  to 
another  district,  and  on  August  25th  of  that  year,  the  defendant 
claiming  that  the  requisite  amount  of  assessment  work  for  the  pre- 
ceding year  had  not  been  done  upon  either  of  the  claims,  attempted 
to  locate  the  Liberty  quartz  mining  claim  and  included  within  its 
boundaries  nearly  one-half  of  the  Highland  Chief  and  of  the  Gold 
Dust,  and  also  small  parts  of  the  Spanish  Tom  and  of  the  Highland 
Queen  mining  claims.  The  plaintiff's  counsel,  insisting  that  no  for- 
feiture of  either  claim  had  occurred,  offered  in  evidence  receipts  for 
money  disbursed  by  their  client  during  the  time  specified,  amounting 
to  $957.71,  and  contend  that  the  court  erred  in  finding  that  the  value 
of  the  labor  performed  and  of  the  improvements  made  in  the  year 
1905  was  less  than  $100.  The  written  acknowledgments  of  such  pay- 
ments, the  receipts  for  which  are  grouped  in  some  instances,  are  as 
follows,  A.  Klauser,  ^T,y ;  Charles  Wise,  $23.95  ;  Joseph  Silvers,  $1 ; 
J.  E.  Pugh,  $142.80;  M.  Silvers,  $139.05;  Basche-Sage  Hardware 
Co.,  $44.52;  S.  Bond,  $22.40;  Durkee  Mercantile  Co.,  $38.30;  and 
S.  C.  Arbuckle,  $508.69. 

To  determine  what  sums  of  money  so  paid  should  be  credited  on 
account  of  development  work,  the  items  thus  set  forth  will  be  con- 
sidered in  the  order  stated.  The  money  received  by  Klauser,  $37  was 
for  14  days'  work  at  the  Highland  Chief  claim,  most  of  which  time 
was  employed  in  extending  the  tunnel,  and  the  sum  so  paid  should  be 
accounted  for  as  labor  performed.  Wise  earned  $23.95  for  8  days' 
similar  work.  Of  this  sum  $3.95  was  paid,  evidently  at  his  request, 
to  the  Durkee  Mercantile  Company ;  and  the  entire  amount  is  a 
proper  credit. 

Joseph  Silvers  received  $1  for  moving  dirt  at  the  Nineteen  Hun- 
dred and  One  mining  claim.  The  defendant's  relocation  is  based 
upon  an  alleged  forfeiture  of  the  preceding  right  to  the  possession 
of  the  premises  by  reason  of  neglect  to  make  the  required  improve- 
ment, which  averment  imposed  upon  him  the  burden  of  establishing 
the  fact  of  such  loss.  A  prima  facie  case  in  his  favor  was  made  when 
it  appeared  that  the  labor  was  not  performed  within  the  limns  of 
the  claim  during  the  year  relied  upon,  whereupon  the  burden  siiifted 
to  the  plaintiff,  making  it  incumbent  upon  him  to  prove  that,  though 
the  annual  assessment  or  any  part  thereof  was  done  outside  the  claim 
described,  the  work  was  performed  for  and  inured  to  the  benefit  of 
such  mine.  20  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  737;  27  Cyc.  593. 
As  the  plaintiff  failed  to  show  that  the  labor  performed  by  J.  Silvers 

"  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


REQUIREMENT.  323 

was  of  any  benefit  to  the  Bartholf  Group,  or  to  any  claim  thereof,  the 
disbursement  of  $i  must  be  rejected. 

Pugh  received  $142.80  for  about  3,200  Hnear  feet  of  timber  which, 
at  Arbuckle's  request,  he  secured  and  hauled  to  the  mining  claims  in 
November  and  December,  1905,  a  part  of  which  material  was  used 
in  the  tunnel,  forming  three  sets  of  stulls  of  five  feet  each.  It  is 
impossible  from  the  transcript  before  us  accurately  to  determine  the 
value  of  the  timber  so  used,  but  the  worth  thereof  will  be  hereinafter 
estimated.  Some  of  the  timbers  were  taken  from  the  mining  claims 
pursuant  to  an  agreement  to  return  them  when  so  requested. 

Excepting  the  year  when  a  location  is  made  (chapter  9,  21  U.  S. 
Stat.  61),  there  must  annually  be  expended  not  less  than  $100  in 
labor  or  improvement  upon  each  unpatented  mining  claim  located 
after  May  10,  1872.  Where,  however,  two  or  more  contiguous  claims 
are  held  in  common,  such  expenditure  may  be  made  upon  any  one 
claim.  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426)  ;  Gird 
V.  CaHfornia  Oil  Co.  (C.  C.)  60  Fed.  531  ;  Royston  v.  Miller  (C.  C.) 
76  Fed.  50.  The  word  "improvement,"  as  thus  used,  evidently  means 
such  an  artificial  change  of  the  physical  conditions  of  the  earth  in, 
upon,  or  so  reasonably  near  a  mining  claim  as  to  evidence  a  design 
to  discover  mineral  therein  or  to  facilitate  its  extraction,  and  in  all 
cases  the  alteration  must  reasonably  be  permanent  in  character.  Thus 
in  Honaker  v.  Martin,  11  Mont.  91,  27  Pac.  397,  tlie  owner  of  a 
mining  claim,  not  having  performed  in  a  certain  year  the  required 
amount  of  assessment  work,  sought  to  prevent  a  forfeiture  of  his 
right  to  the  possession  of  the  premises  by  resuming  the  development 
early  in  the  succeeding  year,  paying  for  that  purpose  $63  for  logs, 
slabs,  and  lumber  which  were  taken  to  the  claim,  but  not  used,  and 
it  was  held  that  the  work  had  not  been  resumed  in  good  faith.  In  the 
development  of  a  mining  claim,  the  maxim  that  equity  regards  as 
done -what  was  intended  has  no  application,  and  hence  the  timbers 
which  Pugh  took  to  the  premises,  but  were  not  there  used,  never 
became  a  part  of  the  claims  and  the  value  of  such  material  should  not 
be  reckoned  as  an  improvement. 

M.  Silvers  received  $65  for  a  pair  of  horses  and  $74.05  for  hauling 
goods  and  material  to  the  mines.  It  is  difficult  to  understand  how 
money  disbursed  in  purchasing  horses  can  be  regarded  as  of  any 
benefit  to  a  mining  claim.  If  the  animals  had  been  used  in  the  tunnel 
to  draw  cars,  or  employed  at  a  shaft  to  raise  ore,  etc.,  the  reasonable 
compensation  for  their  daily  service  might  be  treated  as  labor  per- 
formed (Wright  V.  Killian,  132  Cal.  56,  64  Pac.  98),  but  the  sum  of 
money  paid  for  their  purchase  cannot  be  viewed  as  an  expenditure  in- 
curred in  the  development  of  a  mining  claim.  Some  of  the  material 
which  Silvers  took  to  the  mines  consisted  of  about  150  feet  of  iron 
rails,  a  part  of  w^hich  was  used  in  laying  a  track  in  the  tunnel,  and 
the  remaining  rails,  about  137  feet,  were  taken  to  another  mine,  un- 
der an  agreement  to  return  them  when  so  requested.    The  cost  of 


324  LABOR,    IMPROVEMENTS    AND    ABANDONMENT, 

hauling  the  rails  that  were  used  in,  and  thus  became  a  part  of,  the 
mining  claim  is  a  valid  expenditure,  but,  as  it  is  impossible  to  segre- 
gate the  sum  of  money  thus  applicable  from  the  payment  that  was 
made,  the  value  of  the  rails  that  were  used  will  be  estimated  in  de- 
termining the  worth  of  the  tunnel  that  was  extended  in  1905.  Silvers 
also  took  to  the  mines  some  powder,  fuse,  candles,  etc.,  which  were 
used  in  driving  the  tunnel,  and  the  cost  of  transporting  such  goods 
will  be  valued  in  the  manner  indicated.  The  remaining  part  of  the 
payment  made  to  him  was  for  hauling  to  the  mines  supplies,  etc., 
which  were  there  used  in  furnishing  food  to  the  men  who  were  em- 
ployed in  doing  development  work  and  who  received  board  in  addi- 
tion to  their  wages.  The  reasonable  value  of  the  meals  provided 
should  augment  the  earnings  of  the  men  so  employed,  and  will  be  so 
treated ;  but  the  money  expended  in  transporting  the  supplies  is  not 
a  proper  charge  for  development  work,  and  the  entire  claim  must  be 
disallowed. 

The  money  paid  to  Basche-Sage  Hardware  Company,  $44.52,  was 
principally  for  iron  rails,  some  of  which  were  laid  on  ties  placed  in 
the  tunnel.  The  worth  of  the  rails  so  used  will  be  estimated  in  de- 
termining the  value  of  the  extension  made  to  the  tunnel,  but  the  pay- 
ment so  made  will  be  disregarded. 

Bond  received  $22.40  for  tools,  etc.,  which  were  taken  to  the  mines 
where  they  were  used.  These  implements  did  not  become  a  part  of 
the  mining  claims,  and,  though  a  reasonable  compensation  for  their 
use  might  be  considered  as  development  work,  the  purchase  price 
cannot  be  so  treated ;  and  the  payment  will  be  rejected. 

The  Durkee  Mercantile  Company  received  $38.30  for  cutlery, 
dishes,  tinware,  groceries,  provisions,  tobacco,  bed  clothing,  etc.  In- 
cluded in  the  receipted  bill  with  the  items  noted  appear  charges  for 
a  box  of  candles  sold,  $2.85,  which,  if  used  at  the  tunnel,  might  be 
credited  as  an  expenditure,  and  will  be  so  considered  in  making  the 
estimate  adverted  to.  The  other  items,  however,  do  not  constitute 
an  improvement ;  and  the  claim  will  be  disallowed. 

The  disbursement  to  Arbuckle  was  for  groceries  which  he  Ijought, 
$11.55,  for  money  expended  in  paying  for  a  table  cloth,  towels,  livery 
hire,  feed  for  horses,  and  horse  shoeing,  $11.80,  and  the  remainder, 
$485.34,  was  given  for  the  labor  and  services  which  he  rendered  as 
manager  from  October  2,  1905,  to  May  16,  1906.  The  only  item  for 
which  he  received  payment  that  should  be  credited  on  account  of 
development  is  the  actual  work  he  performed  at  the  mines.  He  testi- 
fies that,  though  he  remained  at  the  claims  most  of  the  time  during 
the  period  stated,  the  labor  he  performed  required  from  18  to  25 
days'  time.  There  was  no  machinery  or  other  fixtures  of  importance 
at  the  mines,  the  preservation  of  which  necessitated  a  watchman, 
when  the  development  work  had  ceased,  and,  this  being  so,  the  worth 
of  the  actual  labor  performed  by  Arbuckle  in  endeavoring  to  increase 
the  world's  wealth  by  making  an  honest  efifort  to  discover  valuable 


REQUIREMENT.  3^5 

minerals  is  the  only  credit  to  which  he  is  entitled.  Altoona  Mining 
Co.  V.  Integral  Mining  Co.,  114  Cal.  100,  45  Pac.  1047;  Hough  v. 
Hunt,  138  Cal.  142,  70  Pac.  1059,  94  Am.  St.  Rep.  17.  The  entire 
payment  thus  made  to  him  will  be  rejected,  but  m  estniiatmg  the 
value  of  the  development  work  done  in  the  year  1905  credit  will  be 
allowed  for  the  actual  labor  which  he  performed. 

Giving  to  the  testimony  that  degree  of  weight  to  which  we  think 
it  is  entitled,  it  unmistakably  appears  that  Klauser  and  Wise  worked 
at  the  mines  14  and  8  days,  respectively,  and  that  Arbuckle  did  some 
work  that  tended  to  advance  the  development.    Their  combined  ef- 
fort extended  the  tunnel  27  feet  and  6  inches,  and  cut  a  drift  there- 
from 5  feet  and  6  inches  in  length,  making  a  total  of  33  feet.    The 
testimony  of  plaintiff's  witnesses  is  to  the  effect  that  the  value  of 
such  work  is  $8  a  foot,  while  defendant's  witnesses  assert  that  one- 
half  that  sum  is  ample  compensation  for  the  labor  performed  and  for 
all  other  expenses  incurred  in  connection  therewith.   Considering  the 
payments  made  to  Klauser  and  Wise,  and  the  extent  of  the  work 
done  by  each  in  extending  the  tunnel,  we  think  the  testimony  of  de- 
fendant's witnesses  preponderates  as  to  the  reasonable  value  of  the 
improvements  made  to  the  Highland  Chief  mining  claim  in  the  year 
1905  and  $132  will  be  allowed  as  the  entire  sum  legitimately  ex- 
pended on  account  of  the  assessment  work,  including  the  labor  per- 
formed by  Arbuckle,  and  the  cost  of  the  timbers,  iron  rails,  powder, 
fuse,  candles,  board,  and  all  other  material  necessary  to  complete  the 
work  in  the  condition  in  which  it  now  exists.    This  conclusion  is 
based  upon  Arbuckle's  testimony,  which  is  to  the  effect  that  the  de- 
fendant in  14  days  drove  the  tunnel  24  feet  and  7  inches ;  and  that 
Wise  in  8  days,  assisted  to  some  extent  by  the  witness,  further  ex- 
tended the  subterranean  passageways  8  feet  and  5  inches.    For  the 
performance  of  such  labor  Klauser  and  Wise  respectively  received 
$37  and  $23.95  and  their  board,  which  appears  to  have  reasonably 
been,  worth  85  cents  a  day,  thereby  augmenting  the  cost  of  such 
labor  for  22  days  $18.70,  and  making  the  sum  which  should  have 
been  credited  to  them  $79.65,  and  leaving  $52.35  as  the  value  of 
Arbuckle's  labor  and  the  cost  at  the  mines  of  the  rails  and  timbers 
that  were  incorporated  in  the  premises,  which  credit  is,  in  our  opin- 
ion, sufficient  to  cover  all  the  expense  incurred.    Permitting  the  ut- 
most credit  possible  for  Arbuckle's  work  of  18  to  25  days,  and  con- 
sidering all  other  items  of  expense  incurred  in  extending  the  tunnel, 
the  outlay  for  such  labor,  including  the  work  performed  by  Klauser 
and  Wise,  and  of  the  improvement  made,  cannot,  under  any  method 
of  computation,  equal  $400,  the  sum  necessary  to  have  been  disbursed 
in  the  year  1905  in  order  to  maintain  a  right  to  the  possession  of  the 
Bartholf  Group ;  and  hence  any  theory  that  may  have  been  adopted 
at  the  trial  must  be  unavailing  when  the  four  mining  claims  are  con- 
sidered as  a  group.    The  sum  of  $132  so  allowed  for  the  improve- 
ment made  is  sufficient,  however,  to  prevent  a  forfeiture  of  the  High- 


326  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

land  Chief  mining  claim  upon  which  the  expenditure  was  employed, 
treating  that  claim  and  the  Gold  Dust  as  separate  and  distinct  en- 
tities as  set  forth  in  the  complaint,  the  averment  in  respect  to  which 
must  be  controlling. 

The  decree  will,  therefore,  be  modified  and  one  entered  here  en- 
joining the  defendant  from  interfering  in  any  manner  with  the  pos- 
session of  the  Highland  Chief  quartz  mining  claim,  and  from  assert- 
ing any  right,  title,  claim,  interest,  or  estate  therein  by  reason  of  the 
attempted  location  of  the  Liberty  quartz  mining  claim,  which  is 
hereby  set  aside  so  far  only  as  its  iDOundaries  conflict  with  the  High- 
land Chief  quartz  mining  claim.^- 


HAWGOOD  V.  EMERY. 

1909.     Supreme  Court  of  South  Dakota, 
22  S.  Dak.  573,  119  N.  W.  177. 

Injunction  by  John  N.  Hawgood  against  Moses  S.  Emery. 
From  a  judgment  for  defendant,  plaintiff  appeals.    Affirmed. 

Whiting,  J. — This  cause  comes  before  the  court  upon  an  appeal 
from  the  judgment  of  the  circuit  court  of  Lawrence  county;  the 
errors  complained  of  being  in  the  rejection  of  certain  testimony  of- 
fered by  the  appellant  on  the  trial  in  said  circuit  court. 

It  appears  that  the  plaintiff  and  defendant  were  the  owners  in 

^-  "It  is  further  urged  that  the  court  erred  in  refusing  defendant's  requested 
instruction  13  in  the  form  requested.  The  instruction  as  requested  was  as 
follows:  'The  jury  is  also  instructed  that,  in  estimating  the  amount  and  value 
of  labor  performed  and  improvements  made  on  the  Pinder  claim,  they  should 
take  into  consideration  any  road,  building,  and  also  blacksmith  shop  or  black- 
smith implements  built,  made,  or  placed  upon  the  claim,  if  any,  provided  they 
further  find  from  the  evidence  that  such  road,  building,  blacksmith  shop,  or 
blacksmith  implements  were  placed  upon  the  claim  for  the  purposes  of  aiding 
in  the  work  on  and  development  of  the  claim,  and  did  tend  to  aid  in  the 
working  and  development  of  the  claim.'  The  court  gave  this  instruction,  but 
added  the  following:  'But  if  j'ou  find  from  the  evidence  that  any  blacksmith 
shop  and  blacksmith  implements  were  so  placed  on  said  claim  for  the  use  of 
men  doing  assessment  work  on  other  claims  owned  by  defendant,  as  well  as 
on  the  Pinder  claim,  then  you  will  not  be  at  liberty  to  estimate  same  as  part 
of  the  improvements  on  the  Pinder  for  the  year  1897.'  We  are  of  the  opinion 
that  the  modification  of  the  instruction  was  proper  under  the  facts  of  this 
case.  The  instruction  as  given  allowed  the  defendant  the  benefit  of  the  im- 
provements named,  including  the  blacksmith  shop,  if  done  or  made  for  the 
Pinder  claim  exclusively.  The  testimony,  however,  indicated  that  the  black- 
smith shop  was  for  the  joint  benefit  of  a  group  of  claims.  There  was  no  tes- 
timony to  show  how  many  claims  it  was  to  be  used  for,  nor  any  otlier  basis 
from  which  could  be  deduced  the  result  as  to  what  proportion  of  the  improve- 
ment was  attributable  to  the  Pinder.  There  being  no  data  given  the  jury  from 
which  this  conclusion  could  be  reached,  the  court  was   right  in  withdrawing 


REQUIREMENT.  327 

common  of  two  certain  adjacent  mining  claims  involved  in  this  ac- 
tion; that  the  defendant  and  respondent  claiming  that  the  plaintiff 
and  appellant  had  not  performed  his  share,  or  any  part  thereof,  of 
the  work  required  under  section  2324  of  the  Revised  Statutes  of  the 
United  States  (U.  S.  Comp.  St.  1901,  p.  1426),  the  said  defendant 
had  proceeded  to  give  notice  of  forfeiture  of  the  plaintiff's  rights  to 
said  claims  under  the  statutes  of  the  United  States  relating  to  such 
forfeiture.  The  plaintiff  brought  this  action  to  restrain  the  defendant 
from  filing  the  necessary  papers  in  the  office  of  the  register  of  deeds 
in  Lawrence  county,  and  to  restrain  him  from  asserting  any  right, 
title,  or  interest  in  and  to  the  undivided  interest  in  said  claims 
claimed  to  be  held  by  said  plaintiff',  and  also  asking  for  a  decree  of 
court  quieting  in  said  plaintiff'  title  to  the  undivided  interest  in  said 
claims.  Plaintiff'  in  his  complaint  set  out  that  he  had  fully  complied 
with  the  requirements  of  law  as  regards  the  representation  and  de- 
velopment of  said  claims.  The  defendant,  answering,  admits  that  he 
was  in  the  act  of  taking  steps  to  declare  a  forfeiture  of  plaintiff's 
title  to  said  mining  claims,  and  sets  forth  the  fact  that  he,  the  said 
defendant,  had  performed  the  labor  and  made  the  improvements  on 
said  claims  for  the  years  in  question  that  was  necessary  for  their 
representation  and  development,  and  alleged  that  the  plaintiff  had 
wholly  failed  in  performing  assessment  work  upon  the  said  mines 
or  lodes  for  years  in  question,  and  had  failed  to  pay  to  defendant  for 
his  ( plaintiff's )  proportionate  part  of  the  work  done  by  defendant 
within  90  days  after  demand  so  to  do. 

Upon  the  trial  plaintiff  offered  evidence  to  show  that  he  per- 
formed work  on  certain  adjacent  claims,  for  which  work  he  claimed 
he  was  entitled  to  receive  credit  on  the  claims  in  litigation  for  the 
reason  that  such  work  was  beneficial  to  and  naturally  tended  to  the 
development  of  the  claims  in  question.  He  offered  to  show  that  he 
posted  notices  in  conspicuous  places  on  the  claims  in  litigation,  noti- 
fying the  world  that  development  work  for  said  claims  was  being 
done  on  the  said  adjacent  claims,  and  also  offered  to  prove  that  no- 
tices were  posted  conspicuously  at  the  entrances  of  the  workings  on 
said  adjacent  claims  notifying  the  world  that  said  workings  were 
being  carried  on  in  part  for  the  benefit  of  the  claims  in  litigation.  It 
appears  by  the  evidence  tliat  the  parties  to  this  action,  while  partners 

the  matter  from  the  consitleration  of  the  jury.  While  it  is  undoubtedly  the 
law  that  improvements  put  upon  one  of  a  group  of  contiguous  claims,  to 
which  the  particular  claim  belongs,  and  for  the  common  development  of  all, 
are  to  be  considered  in  determining  whether  improvements  for  a  given  year 
have  been,  made,  the  utmost  that  can  be  credited  to  any  one  claim  on  this  ac- 
count is  its  fair  proportion  of  the  common  benefit.  There  being  nothing  in 
the  evidence  from  which  the  iury  could  deduce  this  proportion,  the  court  was 
justified  in  debarring  them  from  the  field  of  speculation  and  confining  them 
to  the  realm  of  fact."  Pope,  J.,  in  Upton  v.  Santa  Rita  Min.  Co.,  14  N.  Mex. 
96,  89  Pac.  275,  284. 


328  LABOR,    IMPROVEMENTS    AND    ABANDONMENT, 

as  regards  the  claims  in  question,  had  not  been  on  speaking  terms 
during  the  years  when  it  is  claimed  by  each  that  they  did  the  work 
they  base  their  rights  on.  It  also  appears  that  the  defendant  had  no 
interest  whatsoever  in  either  of  the  claims  upon  which  plaintiff 
claims  to  have  done  the  work  for  which  he  should  receive  credit,  and 
it  does  appear  that,  as  regards  two  of  these  adjacent  claims,  the 
plaintiff  was  the  sole  owner  thereof  and  the  owner  in  common  with 
other  parties  in  the  three  other  claims  upon  which  said  work  had 
been  done.  There  is  no  claim  made  that  the  defendant  ever  entered 
into  any  agreement  for  the  doing  of  the  development  work  on  the 
claims  held  by  the  plaintiff  and  these  third  parties.  It  will  be  seen, 
therefore,  that  the  ruling  of  the  court  in  excluding  the  testimony 
sought  to  be  introduced  by  the  plaintiff  was  error,  providing  that, 
under  the  facts  above  set  forth,  the  plaintiff  would  have  any  right  to 
have  his  \vork  credited  on  the  claims  in  litigation. 

I  think  it  is  well  settled  both  by  the  decision  of  this  court  found 
in  Godfrey  v.  Faust,  20  S.  D.  203,  105  N.  W.  460,  and  under  the 
holdings  in  2  Lindley  on  Mining,  §§  630-631,  together  with  the  long 
line  of  authorities  cited  by  our  court,  and  also  by  Lindley,  as  well  as 
the  authorities  cited  by  both  parties  on  this  appeal,  that,  where  a  per- 
son or  persons  hold  several  claims  that  are  adjacent,  work  can  be 
done  on  one  claim  and  be  credited  on  the  other  claims ;  also,  that 
work  can  be  done  outside  of  the  limits  of  the  claim,  and  have  it  cred- 
ited on  such  claim  where  such  work  is  beneficial  to  the  claim,  and 
that  this  is  true  even  if  there  are  several  claims  for  which  credit  is 
asked  for  said  outside  work,  provided  said  several  claims  are  held 
in  common;  also,  that,  where  there  are  several  claims  adjacent  held 
by  different  persons  and  work  beneficial  to  all  of  said  claims  can  best 
be  done  on  one  of  them,  then,  under  a  proper  agreement  between  the 
owners  of  said  claims,  development  work  can  all  be  done  on  one 
claim,  and  be  credited  to  the  several  claims,  such  work  being  a  part 
of  the  general  plan  or  scheme  for  the  development  of  the  several 
claims. 

As  we  understand  the  case  at  bar,  it  is  under  this  last  proposition 
that  the  appellant  contends  that  he  should  be  allowed  to  introduce 
the  evidence  rejected;  his  contention  being  that  said  evidence  would 
have  shown  that  the  work  done  was  beneficial  to  the  claims  in  liti- 
gation. We  think,  however,  that  the  rulings  of  the  circuit  court 
were  correct  for  the  following  reasons :  It  does  not  appear  that  said 
work  was  any  part  of  a  general  plan  or  scheme  for  the  development 
of  the  mines  in  question  in  connection  with  the  mines  upon  which 
the  work  was  done.  Furthermore,  this  was  an  attempt  of  one  part- 
ner to  enter  into  a  scheme  whereby,  without  any  agreement  therefor 
with  his  partner,  he  would  perform  work  upon  property  of  which 
he  was  the  sole  owner,  and  upon  property  of  which  he  was  part 
owner  with  third  parties,  and  hold  the  defendant  liable  therefor.  The 


REQUIREMENT.  329 

claim  of  plaintiff  cannot  be  upheld,  unless  the  court  would  be  willing, 
in  case  tiiis  was  an  action  of  plaintiff  against  defendant  for  an  ac- 
counting, to  allow  plaintiff  a  money  judgment  for  said  work.  And 
upon  what  theory  could  that  be  done  ?  It  would  certainly  throw  the 
doors  open  to  fraud  if  one  member  of  a  partnership,  regardless  of 
the  wishes  of  his  copartner,  could  do  work  upon  his  individual  prop- 
erty beneficial  to  the  same,  and  afterwards  recover  from  his  partner 
therefor  on  the  theory  that  his  partner  was  benefited,  especially 
where,  as  in  this  case,  there  was  no  agreement  or  understanding  in 
existence  under  which  the  defendant  or  any  purchaser  of  his  right 
could  have  held  or  claimed  an  easement  in  the  premises  upon  which 
this  work  was  being  done,  such  as  would  follow  the  claims  upon 
which  such  work  was  being  done,  provided  said  claims  were  sold  to 
parties  strangers  to  this  transaction. 

One  illustration,  it  would  seem,  would  show  the  weakness  of 
plaintift''s  contention.  Suppose  plaintiff  owned  a  string  of  six 
claims  adjacent  one  to  the  other  such  that  work  on  any  one  of  them 
could  be  credited  in  his  behalf  on  all  of  them.  Then  suppose  that 
said  plaintiff  had  a  half  interest  in  six  other  claims,  all  of  which 
were  adjacent  to  the  first-mentioned  claims,  the  other  half  interest 
in  said  claims  being  held  separately  by  six  individuals,  and  all  the 
claims,  both  those  owned  in  common  with  the  other  persons  and 
those  owned  by  plaintiff',  should  be  so  situated  that  the  work  done 
by  plaintiff  on  one  of  his  claims  could  be  held  to  be  beneficial  to  the 
six  claims  in  which  he  held  half  interest.  Would  any  one  claim  that, 
if  these  owners  of  the  other  half  interest  in  these  claims  each  of  them 
did  the  full  amount  of  work  necessary  to  hold  their  claim,  the  plain- 
tiff without  their  consent  and  without  any  arrangement  or  agree- 
ment whatever  could  put  in  a  claim  against  these  several  persons  for 
a  share  of  the  money  he  had  expended  on  his  sole  property  upon  the 
contention  upon  his  part  that  the  work  he  had  done  was  done  as  a 
general  plan  or  scheme  for  the  development  of  all  these  claims. 
Such  a  claim  as  that  would  seem  to  us  out  of  reason.  And  let  us 
suppose  that  each  of  the  owners  of  a  half  interest  in  a  claim  had 
each  a  claim  adjacent  to  their  said  partnership  claim,  and  that  work 
on  each  partnership  claim  would  benefit  the  claim  held  by  such  part- 
ner in  severalty,  and  also  the  claims  held  in  partnership,  then,  under 
the  contention  of  plaintiff  herein,  the  plaintiff's  interest  in  the  part- 
nership claims  would  be  subject  to  all  of  the  work  done  on  the  six 
claims  held  in  severalty  by  his  partners.  To  complete  the  illustra- 
tion, let  us  suppose  that  all  of  the  workings  on  plaintiff's  own  claim 
and  upon  each  of  his  partners'  claims  were  of  the  same  nature  and 
would  benefit  the  partnership  claims  in  exactly  the  same  way,  and 
all  seven  of  said  workings  were,  as  far  as  the  partnership  claims 
were  concerned,  of  no  more  benefit  than  any  one  of  said  workings 
would  have  been.     Under  these  facts,  could  each  of  the  partners 


330  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

credit  himself  up  as  against  the  partnership  property  for  a  share  of 
the  work  done  on  his  individual  property?    We  think  not. 

In  the  discussion  of  this  case,  we  have  considered  it  as  if  the  par- 
ties hereto  were  copartners  in  said  claims ;  it  having  been  so  alleged 
and  admitted  in  the  pleadings.  We  do  not,  however,  want  to  be 
understood  as  holding  that  two  persons  who  unite  in  establishing  a 
mining  claim  are  more  than  cotenants  or  co-owners  without  some 
special  agreement  making  them  partners. 

We,  therefore,  think  that,  under  the  facts  as  they  appeared  at  the 
time  the  rulings  were  made  by  the  circuit  court,  the  court  was  cor- 
rect in  its  rulings  excluding  the  evidence  offered. 

The  judgment  of  the  lower  court  is  sustained. 


MERCHANTS'  NAT.  BANK  v.  McKEOWN  et  al. 
191 1.     Supreme  Court  of  Oregon.     119  Pac.  334. 

Action  by  the  Merchants'  National  Bank  against  David  A.  Mc- 
Keown  and  others.  Judgment  for  defendants,  and  plaintiff  appeals. 
Affirmed. 

Eakin,  C.  J.^^ — This  is  a  suit  instituted  to  estabhsh  an  adverse 
right  to  a  mining  claim,  for  which  defendants  have  applied  to  the 
United  States'  Land  Department  for  a  patent.  The  Golden  Star  claim 
is  one  of  a  group  of  mines  originally  owned  by  the  Copperopolis  Cop- 
per Company,  in  Grant  county,  Or.,  to  whose  title  plaintiff  has  suc- 
ceeded. On  January  2,  1908,  defendants  relocated  it  as  the  Argo- 
naut quartz  mining  claim. 

It  is  conceded  that  the  Copperopolis  Copper  Company  did  no  an- 
nual labor,  as  required  by  section  2326,  U.  S.  Rev.  St.  (U.  S.  Comp. 
St.  1901,  p.  1430),  upon  the  Golden  Star  claim  for  the  year  1907. 
But  plaintiff  asserts  that  until  June,  1906,  it  was  performing  labor 
in  excavating  a  tunnel,  and  was  erecting  machinery  upon  the  Protec- 
tion &  Oregon  Bell  claims,  being  patented  claims  in  a  group  with  the 
Golden  Star,  known  as  the  "Home  Group,"  for  its  development,  and 
had  constructed  more  than  600  feet  of  tunnel  and  had  several  thou- 
sand dollars'  worth  of  machinery  and  buildings  thereon ;  that  for 
lack  of  funds  it  had  ceased  work  thereon  in  June,  1906,  and  its  su- 
perintendent, W.  W.  Gibbs,  his  wife,  and  son,  had  remained  upon 
the  property  as  keepers  of  the  property  until  June,  1907.  Gibbs' 
salary  as  superintendent  was  $150  per  month.  The  son's  salary  as 
chore  boy  and  the  wife's  as  cook  was  $40  each  per  month.  Plaintiff 
relied  on  these  expenditures  to  constitute  the  annual  labor  for  the  10 
unpatented  claims  in  that  group.     '■'     *     ''"' 

The  only  other  contention  of  plaintiff  is  that  the  evidence  estab- 

^'  Part  of  the  opinion  is  omitted. 


REQUIREMENT.  331 

lished  the  fact  that  plaintiff's  grantors  performed  the  annual  labor 
for  the  year  1907  as  required  by  the  United  States  statute.  It  is  not 
contended  by  plaintiff  that  any  labor  was  performed  on  the  Golden 
Star  claim  during-  that  year,  but  that,  it  being  a  part  of  the  "Home 
Group,"  work  done  and  improvements  made  on  the  Protection  and 
Oregon  Bell  claims  prior  to  1907,  which  was  for  the  development  of 
all  claims,  inured  to  the  benefit  of  the  Golden  Star,  and  that  the 
work  of  the  watchman  above  mentioned  in  1907  should  be  taken  as 
the  annual  labor  for  those  claims. 

[3]  When  defendants  established  that  no  work  had  been  done 
upon  the  Golden  Star  claim  for  the  year  1907,  Vk^hich  was  admitted 
by  plaintiff,  the  burden  shifted,  and  was  upon  plaintiff  to  establish 
the  fact  that  work  done  outside  of  the  claim  was  for  its  benefit. 
2  Lindley,  §  630;  Dyer  v.  Brogan,  70  Cal.  136,  11  Pac.  589;  Hall  v. 
Kearney,  18  Colo.  505,  33  Pac.  373;  Sherlock  v.  Leighton,  9  Wyo. 
297,  63  Pac.  580,  934.     It  appears  from  the  evidence  that  in  June, 

1906,  the  Copperopolis  Copper  Company  ceased  operation  upon  the 
group  and  the  men  were  discharged  except  Gibbs,  a  stockholder  and 
officer  of  the  company  and  superintendent  of  the  operation,  who  re- 
mained upon  the  properties  in  the  employ  of  the  company,  until 
June,  1907,  as  watchman  or  keeper.  The  improvements  upon  the 
Protection  and  Oregon  Bell  claims  consisted  of  two  engines  and 
boilers,  concentrating  tables,  two  gigs,  a  gasoline  engine,  a  dynamo, 
an  ore  crusher,  an  air  compressor  which  was  used  in  operating  a 
drill  in  the  tunnel,  a  ventilating  system,  operated  in  the  tunnel  by 
the  gasoline  engine.  A  part  of  this  plant  was  obtained  only  to  ex- 
periment on  the  ore  from  the  Oregon  Bell  claim,  and  was  not  used 
more  than  a  month  or  two.  The  only  work  done  at  any  time  which 
tended  to  develop  the  Golden  Star  claim  was  the  tunnel  which  had 
reached  within  a  few  hundred  feet  of  the  claim ;  and  the  only  ma- 
chinery or  improvements  that  related  to  it  was  such  as  were  used  in 
extending  the  tunnel.  When  the  mine  was  shut  down  in  June,  1906, 
the  company  had  evidently  no  immediate  prospect  of  resuming  work. 
It  ceased  work  for  the  reason  that  it  had  no  money  and  was  making 
an  eft'ort  to  sell  the  mine.  Thereafter,  in  June,  1907,  the  property 
was  attached  for  debt  and  placed  in  the  hands  of  a  receiver,  and 
through  such  proceeding  the  Droperty  was  transferred  to  this  plain- 
tiff. 

[4]  It  is  not  contended  that  there  was  any  work  done  on  any  of 
the  group  that  could  constitute  development  work  for  the  year  1907, 
other  than  the  expense  of  the  watchman  from  January  i  to  June  i, 

1907,  and  the  sufficiency  of  that  expense  to  constitute  the  annual 
work  for  the  Golden  Star  claim  depends  upon  the  necessity  for  the 
watchman,  and  whether  the  expense  was  sufficient  for  that  purpose. 

[5]  During  that  period  Gibbs  was  upon  the  property  as  keeper, 
but  the  services  of  the  son  in  cutting  wood  for  the  house  and  caring 


332  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

for  the  team  of  horses  and  those  of  the  wife  as  cook  were  not  neces- 
sary;  nor  was  the  company  justified  in  paying  a  superintendent's 
salary  for  a  watchman.  There  is  no  evidence  as  to  the  value  of  the 
services  of  a  watchman,  but  it  does  appear  that  McClernan  during 
the  same  time  vv^as  performing  annual  assessment  work  upon  the 
Kimbell  group,  belonging  to  the  same  company,  at  $3  a  day,  and 
paid  his  own  board,  and  the  expense  of  the  watchman  should  be  no 
more.  Therefore  if  the  expense  of  the  watchman  from  January  i 
to  June  I,  1907,  was  necessary  and  was  for  the  advantage  of  the 
Golden  Star  claim  equally  with  the  others,  it  would  be  insutificient  to 
equal  the  annual  labor  required  upon  the  10  claims,  and  but  a  small 
part  of  the  property  to  be  cared  for  related  to  the  group  other  than 
the  two  patented  claims.  The  expense  of  the  keeper  is  only  allow- 
able as  annual  labor  when  the  mine  is  temporarily  idle  and  the  work 
is  to  be  resumed  again,  the  watchman  being  necessary  to  preserve 
the  property  needed  when  the  work  is  resumed,  and  cannot  be  so 
applied  from  year  to  year  indefinitely  as  a  substitute  for  the  annual 
labor.  This  is  the  holding  in  Hough  v.  Hunt.  138  Cal.  142,  70  Pac. 
1059,  94  ^^"''-  St.  Rep.  17,  where  it  is  said:  "The  cases  must  be 
rare  in  which  it  can  justly  be  said  that  such  money  is  expended  in 
prospecting  or  working  the  mine.  There  may  be  cases  where  work 
has  been  temporarily  suspended,  and  there  are  structures  which  are 
likely  to  be  lost  if  not  cared  for,  and  it  appears  that  the  structures 
will  be  required  when  work  is  resumed,  and  that  the  parties  do  in- 
tend to  resume  work  in  which  money  expended  to  preserve  the 
structures  will  be  on  the  same  basis  as  money  expended  to  create 
them  anew.  But  this  could  not  go  on  indefinitely.  As  soon  as  it 
should  appear  that  this  was  done  merely  to  comply  with  the  law  and 
to  hold  the  property  without  any  intent  to  make  use  of  such  struc- 
tures within  a  reasonable  period,  such  expenditures  could  not  be  said 
to  have  been  made  in  work  upon  the  mine."  This  case  is  cited  with 
approval  in  Gear  v.  Ford,  4  Cal.  App.  562.  88  Pac.  600;  2  Lindley, 
§  629;  Fredericks  v.  Klauser,  52  Or.  no,  96  Pac.  679.  See,  also, 
Kinsley  v.  New  Vulture  Min.  Co.,  11  Ariz.  66,  90  Pac.  438,  no  Pac. 
1135;  Morrison  on  Mining  Rights  (14th  Ed.)  118.  The  application 
of  the  expense  of  the  keeper  to  the  annual  work  in  the  case  before 
us  is  excluded  by  the  terms  of  the  language  quoted.  Evidently  the 
company  was  insolvent  and  had  no  intention  of  immediately  resum- 
ing work,  and  the  keeper  was  there  to  preserve  the  property,  to  aid 
in  its  sale,  and  not  in  the  development  of  the  mine.  Even  if  it  is 
conceded  that  the  whole  of  the  expense  of  the  keeper  should  be  cred- 
ited as  annual  labor  upon  the  ten  unpatented  claims,  it  is  insufficient 
in  value  for  that  purpose. 

The  decree  of  the  lower  court  is  affirmed  . 


REQUIREMENT.  333 

(c)    Locations  Held  by  Adverse  Possession  and  the  Annual  Labor 

Requirement. 

UPTON  V.  SANTA  RITA  MINING  CO. 

SANTA  RITA  MINING  CO  v.  UPTON. 

1907.     Supreme  Court  of  New  Mexico. 
14  N.  Mex.  96,  89  Pac.  275. 

Action  [in  support  of  an  adverse  brought]  by  James  N.  Upton 
against  the  Santa  Rita  Mining  Company.  From  a  judgment  in  favor 
of  plaintiff,  defendant  appeals  and  brings  error.     Affirmed. 

Pope.  J.^*— *     *     * 

It  is  further  urged  that  the  court  erred  in  refusing  to  permit  proof 
as  to  defendant's  adverse  possession  of  the  premises  in  ques- 
tion.   *    *    * 

The  contention  seems  to  be  that,  if  the  defendant  held  and  worked 
the  Pinder  claim  for  10  years — the  statutory  period  for  adverse  pos- 
session in  New  Mexico — his  title  became,  by  virtue  of  the  statute 
above  quoted,  good  as  against  the  world  except  the  government, 
and  the  claim  was  not  subject  to  relocation  in  1898,  notwithstanding 
he  may  have  failed  to  do  his  annual  labor  for  1897.  We  are  unable 
to  find  any  warrant  in  law  for  this  assumption.    *    *    * 

We  believe  that  the  true  rule  on  the  subject  is  succinctly  stated  in 
Altoona  Co.  v.  Integral  Co.,  114  Cal.  100,  45  Pac.  1047,  where  it 
is  said  that  "working  for  the  statutory  period  before  the  adverse 
right  exists  is  equivalent  to  a  location  under  the  act  of  Congress," 
and  in  Belk  v.  Meager,  104  U.  S.  279,  287,  26  L.  Ed.  735,  where  it 
is  declared  to  be  the  "equivalent  of  a  valid  location."  In  other 
words?  a  party  who  has  done  such  work  occupies  the  status  and 
possesses  the  rights  of  a  locator,  no  more  and  no  less.  As  in  the 
case  of  a  holder  of  a  valid  location,  he  has  good  title  as  against  all 
but  the  government,  so  long  as  he  does  the  annual  labor.  As  is  said 
by  Judge  Hallett,  in  Harris  v.  Equator  Company  (C.  C.)  8  Fed.  863: 
"A  presumption  is  indulged  that  the  location  was  regularly  made  in 
the  first  place,  and  the  party  is  allowed  to  remain  so  long  as  he  shall 
comply  with  the  conditions  on  which  he  holds  the  estate."  When 
such  party  comes  to  apply  for  patent,  his  occupancy  must  be  proven 
under  certain  regulations  of  the  Department  (2  Lindley,  17 14)  and, 
when  so  proved,  if  there  be  no  adverse  claimant,  they  are  sufficient, 
as  the  statute  says,  "to  establish  a  right  to  a  patent."  But  in  this  he 
stands  on  the  same  basis  as  the  holder  of  a  location  whose  application 

"  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 
For  another  part  see  ante,  p.  172. 


334  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

is  uncontested.  The  holder  of  such  a  possession,  no  less  than  the 
holder  of  a  location,  must  possess  the  necessary  qualifications  as  to 
citizenship.  Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419.  He  must 
prove,  as  well  as  the  locator,  the  possession  of  $500  worth  of  labor 
or  improvements  before  he  can  secure  a  patent.  Capital  No.  5 
Placer  Min.  Claim,  34  Land  Dec.  Dep.  Int.  462,  supra.  Pending 
his  right  to  patent,  he  must  likewise  perform  the  annual  assessment 
required  of  the  locator,  for  Rev.  St.  §  2324  [U.  S.  Comp.  St.  1901, 
p.  1426],  requiring  such  work  "until  patent  shall  be  issued,"  makes 
no  exception  in  his  favor,  and,  in  default  of  this,  his  claim  is  subject 
to  relocation. 

Nor  do  we  find  anything  to  the  contrary  of  these  views  in  the  cases 
cited  by  the  defendant.  In  Risch  v.  Wiseman,  59  Pac.  iiii,  36  Or. 
484,  78  Am.  St.  Rep.  783,  the  record  showed  specifically  that  the 
party  relying  upon  the  adverse  possession  had  done  $100  worth  of 
work  each  year,  so  that,  having  possession  equal  to  a  location,  his 
title  was  necessarily  impregnable  to  any  attack,  except  the  govern- 
ment's. So,  in  Glacier  Mining  Co.,  v.  Willis,  127  U.  S.  471,  8  Sup. 
Ct.  1214,  32  L.  Ed.  172,  there  is  no  reference  to  nor  any  attempted 
discussion  of  section  2332,  nor  any  determination  of  the  question  of 
whether  assessment  work  must  be  kept  up.  The  same  observations 
apply  to  420  Mining  Co.  v.  Bullion  Co.,  9  Nev.  240.  We  are  clear, 
therefore,  that  it  was  no  defense  against  a  forfeiture,  for  failure 
to  do  assessment  work  for  1897,  that  the  holder  of  the  claim  had  been 
in  possession  of  it  for  10  years  prior  to  1897,  and  that  the  court  did 
not  err  in  rejecting  this  testimony  and  in  refusing  to  give  instruc- 
tions based  on  the  theory  that  such  was  a  defense.    *    *    * 

The  judgment  is  accordingly  affirmed. 


(d)  Annual  Labor  Pending  Patent  Proceedings. 

MURRAY  ET  AL.  V.  POLGLASE  et  al. 

(ADAMS  ET  AL,  Interveners.) 

1899.     Supreme  Court  of  Montana.     23  Mont.  401,  59  Pac.  439. 

Action  by  James  A.  Murray  and  others  against  Jane  Polglase 
and  others  to  establish  an  adverse  claim  to  a  mine  location  [known 
as  the  Maud  S],  in  which  W.  W.  Adams  and  others  intervened. 
Judgment  was  rendered  for  interveners,  from  which  defendants 
[who  located  the  Ramsdell  claim  over  the  ground  of  the  Maud  S 
and  applied  for  patent]  appeal;  and  plaintififs  appeal  from  the  judg- 
ment and  an  order  denying  a  new  trial.    Reversed. 


REQUIREMENT.  335 

Brantly,  C.  J.^"' — The  records  of  the  United  States  land  depart- 
ment, introduced  by  defendants,  show  that  the  entry  of  the  ground  in 
controversy  by  the  plaintiffs  on  December  29,  1887,  was  canceled 
for  fraud,  upon  the  protest  of  some  of  the  defendants  and  the 
predecessors  of  the  others.  The  fraud  alleged  and  established  was 
that  plaintiffs  had  represented  to  the  register  and  receiver  that  they 
had  done  sufficient  work  upon  the  claim  to  entitle  them  to  a  patent, 
whereas  they  had  not  done  more  than  one-half  that  amount.  From 
these  facts  and  the  foregoing  statement  it  will  be  seen  that  the 
parties,  respectively,  occupy  these  positions :  The  plaintiffs  contend 
that,  by  their  entry  and  the  receipt  issued  to  them,  the  land  was  with- 
drawn from  the  public  domain,  so  that  the  defendants  could  acquire 
no  rights  by  their  location  on  January  i,  1888,  notwithstanding  no 
work  was  done  by  plaintiffs  for  the  previous  year,  and  the  entry 
was  subsequently  canceled  for  fraud.  This  withdrawal,  they  say, 
was  effective  to  protect  them  against  a  location  by  any  one  else  until 
the  receipt  was  finally  canceled  on  June  i,  1892,  and  that  when  this 
occurred  they  could  resume  work,  and  thus  retain  their  original  right. 
The  defendants  insist  that,  as  the  entry  was  void,  because  fraudu- 
lently made,  the  plaintiffs  were  not,  even  during  the  existence  of  the 
receipt,  excused  from  doing  the  necessary  work  to  prevent  a  for- 
feiture, and  that  a  cancellation  of  the  entry  inured  to  their  benefit, 
so  as  to  give  them  a  valid  claim  to  the  ground  under  their  location. 
The  interveners  support  the  contention  of  the  plaintiffs  against  the 
claim  of  the  defendants,  but  maintain  that  their  claim  is  good  as 
against  plaintiffs,  because  of  a  forfeiture  incurred  by  plaintiffs  in 
1893.  The  trial  court  sustained  the  contention  of  the  plaintiffs  as 
against  defendants,  thus  excluding  defendants  from  the  case,  leaving 
only  the  question  of  the  forfeiture  of  1893  to  be  tried  between  the 
plaintiffs  and  the  interveners.  Both  plaintiffs  and  defendants  con- 
tend that  the  interveners  have  no  rights  in  this  case.  These  con- 
tentions require  the  solution  of  two  questions  :  ( i )  Did  the  court  err 
in  permitting  the  intervention?  (2)  Assuming  the  defendants'  loca- 
tion to  be  otherwise  valid,  did  they  acquire  any  right  thereunder  by 
virtue  of  the  cancellation  of  plaintiffs'  entry? 

1.  We  are  of  the  opinion  that  the  trial  court  erred  in  permitting 
the  intervention,  [since  interveners  failed  to  file  an  adverse  claim 
under  the  statute.]     '"     *     * 

2.  The  answer  to  the  second  question  will  be  reached  when  we 
have  determined  what  obligation,  if  any,  rested  upon  plaintiffs  to  do 
the  representation  work  during  the  year  1887.  Were  they  relieved 
from  the  necessity  of  doing  it  by  the  receipt  obtained  by  fraudulent 
representations  to  the  authorities  of  the  land  office  ?  The  contention 
of  the  plaintiffs  is  that  they  were.  They  proceed  upon  the  assump- 
tion that  after  the  officers  of  the  land  department  have  examined 
into  the  application  for  a  patent,  have  determined  that  the  applicant 

^'  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


336  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

is  entitled  to  purchase,  have  accepted  his  money  in  payment  for  the 
land  and  issued  to  him  a  certificate  of  purchase,  he  is  vested  with  the 
full  equitable  title  thereto.  The  land  is  then  withdrawn  from  the 
mass  of  the  public  lands,  and,  no  matter  what  infirmity  may  inhere 
in  the  proceedings  by  which  he  obtained  his  certificate,  no  one  else 
can  acquire  any  right  to  the  land,  as  against  him,  so  long  as  he  holds 
the  certificate.  A  fraudulent  certificate,  they  say,  is  just  as  effective 
to  preserve  their  rights  as  an  honest  one.  There  is  no  doubt  that 
when  the  entryman  has  complied  with  the  law  in  good  faith,  and 
has  been  recognized  by  the  government  as  a  purchaser,  he  is  re- 
garded, as  to  third  persons  and  the  government,  the  equitable  owner 
of  the  land.  As  such,  he  is  liable  to  pay  taxes  on  it,  the  same  as  upon 
his  other  property.  Carroll  v.  Safford,  3  How.  441,  11  L.  Ed.  671  ; 
Witherspoon  v.  Duncan,  4  Wall.  210,  18  L.  Ed.  839.  He  is  to  be 
treated  as  the  owner.  In  Witherspoon  v.  Duncan,  after  asserting 
the  power  of  congress  to  dispose  of  the  public  land  either  by  sale  or 
donation,  the  court  proceeds :  "In  either  case,  when  the  entry  is 
made  and  the  certificate  given,  the  particular  land  is  segregated  from 
the  mass  of  the  public  lands,  and  becomes  private  property.  In  the 
one  case  the  entry  is  complete  when  the  money  is  paid ;  in  the  other, 
when  the  required  proofs  are  furnished.  In  neither  can  the  patent 
be  withheld,  if  the  original  entry  was  lawful."  *  *  *  The  cases  of 
Carroll  v.  Safford  and  Witherspoon  v.  Duncan  proceed  upon  the  ob- 
vious principle  that  one  who  has  purchased  lands  in  good  faith  from 
the  government,  and  holds  the  evidence  of  his  purchase,  is,  as  to  the 
government  and  third  persons,  the  equitable  owner  of  them,  and  that 
he  cannot  avoid  his  duty  to  the  state  simply  because  he  has  not  been 
vested  with  the  legal  title.  The  rule  would  be  the  same,  however,  if 
his  title  were  fraudulent.  So  long  as  he  stands  as  the  apparent 
owner  claiming  the  land,  the  obligation  is  the  same.  But  his  duty 
to  the  state,  under  such  circumstances,  would  not  prevent  the  govern- 
ment, or  perhaps  a  person  standing  in  its  place,  from  avoiding  his 
claim  by  showing  it  to  be  fraudulent  and  unfounded.  *  *  *  On 
the  other  hand,  the  parties  plaintiff  and  defendant  in  this  case  stand 
as  two  rival  purchasers,  each  claiming  to  be  entitled  to  the  land  in 
question.  The  latter  have  confessedly  acted  in  good  faith  in  the  per- 
formance of  the  required  conditions,  while  the  former,  though  ad- 
mitting their  fraud,  nevertheless  insist  that,  because  they  thereby 
induced  the  government  to  make  them  the  apparent  purchasers,  they 
are  excused  from  the  performance  of  these  conditions.  Though  they 
were  detected  in  their  fraud,  and  the  government  declared  them 
without  title,  this  fact,  they  say,  did  not  affect  their  right  to  claim 
the  land  under  the  receipt  while  they  held  it,  and  thus  to  exclude 
others  from  acquiring  any  right  thereto. 

It  is  conceded  on  both  sides  that  when  a  locator,  having  complied 
with  the  law.  in  good  faith  completes  his  proof  and  pays  the  purchase 
money,  his  equitable  title  is  complete.     The  conditions  are  then  all 


REQUIREMENT.  337 

performed,  and  no  further  obligation  rests  upon  the  applicant  to 
expend  money  in  doing  the  annual  representation  work.  Even  if  the 
patent  is  delayed  for  any  reason,  still  when  it  is  finally  issued  it  is 
evidence  of  the  regularity  of  all  previous  acts,  and  relates  back  to 
the  date  of  the  original  entry,  so  as  to  cut  off  any  intervening  rights. 
Indeed,  the  decisions  are  uniform  on  this  question  wherever  it  has 
been  considered.  Deno  v.  Griffin,  20  Nev.  249,  20  Pac.  308 ;  Aurora 
Hill  Consol.  Min.  Co.  v.  85  Min.  Co.  (C.  C.)  34  Fed.  515;  Benson 
Mining  &  Smelting  Co.  v.  Alta  Mining  &  Smelting  Co.,  145  U.  S. 
428,  12  Sup.  Ct.  877,  ly  L.  Ed.  762;  Barringer  &  A.  Mines  &  Min. 
265  ;  In  re  Harrison,  2  Land  Dec.  Dep.  Int.  767.  But  we  have  not 
been  able  to  find  any  adjudicated  case  upon  the  exact  question  pre- 
sented here.  Counsel  have  cited  none,  and  we  therefore  conclude 
that  there  is  none.  This  fact,  however,  is  to  be  noted :  That  in  all 
the  cases  cited,  except  those  arising  out  of  railroad  grants,  the  pre- 
sumption has  obtained  that  the  entry  in  question  was  made  in  good 
faith,  and  in  each  one  of  them  the  entry  was  a  subsisting  one  at  the 
time  the  controversy  arose.  *  *  *  The  cancellation  of  plaintiffs' 
receipt  adjudicated  the  fact  that  they  obtained  no  title  at  all  by  their 
entry.  By  this  judgment  of  the  authorities  of  the  land  office  they 
were  deprived  of  the  ability  to  claim  any  rights  under  it.  They  were 
left  with  just  such  rights  as  they  had  at  the  time  they  obtained  it. 
If  they  chose  to  rely  upon  it  as  evidence  of  their  title,  and  then  fore- 
bore  to  preserve  their  rights  by  doing  the  acts  necessary  to  preserve 
them,  they  are  not  now  in  a  position  to  assert  that  they  have  lost 
nothing.  They  stand  in  the  same  position  as  they  would  have  stood 
on  January  i,  1888,  if  they  had  not  obtained  the  receipt  at  all.  They 
cannot  be  heard  to  say  that  during  the  time  the  receipt  was  outstand- 
ing the  land  was  withdrawn  from  the  mass  of  public  lands,  and  that 
defendants  acquired  no  rights  under  their  location.  Plaintiffs'  rights 
were  forfeited,  and  the  Maud  S.  claim  was  subject  to  relocation,  at 
the  time  the  Ramsdell  claim  was  located.  To  hold  otherwise  would 
be  to  lend  assistance  to  the  fraud  attempted  by  plaintiffs,  and  which 
would  have  been  successful  but  for  its  exposure  made  by  defendants 
and  their  predecessors.  It  would  permit  them  to  profit  by  their  own 
misconduct,  in  violation  of  the  principle  expressed  in  the  wholesome 
maxim,  "Nemo  allegans  suam  turpitudinem  est  audiendus."  We 
are  not  to  be  understood  as  holding  that  the  plaintiffs  have  no  rights 
in  any  event.  We  speak  upon  the  facts  in  the  record  before  us. 
The  trial  court  refused  to  permit  the  defendants  to  introduce  the 
notice  of  location,  and  the  facts  upon  which  it  was  based,  on  the 
ground  that  there  had  been  no  forfeiture  of  the  Maud  S.  claim. 
This  was  error.  If  upon  another  trial,  however,  it  should  appear 
that  the  acts  done  by  the  defendants  on  January  i,  1888,  did  not 
amount  to  a  valid  location,  they  would  be  in  no  position  to  take 
advantage  of  plaintiffs'  forfeiture,  and  plaintiffs  would  be  entitled  to 
a  judgment  against  them.     Nor  are  we  to  be  understood  as  dissent- 

22 — Mining  Law 


338  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

ing  from  the  rule  of  the  cases  cited  in  the  former  part  of  this  opinion, 
touching  the  force  and  effect  of  a  certificate  of  purchase  from  the 
United  States.  The  language  used  in  those  cases  is  very  broad  and 
sweeping,  but  is  applicable  only  to  the  facts  of  those  particular  cases. 
Such  a  receipt  is  not  open  to  collateral  attack  in  the  courts  in  con- 
troversies arising  between  rival  claimants  to  lands  covered  by  them. 
This  case  is  an  exceptional  one,  and  is  decided  upon  its  own  peculiar 
facts,  under  the  principles  applicable  to  them.    *    *    * 

The  judgment  herein  in  favor  of  the  interveners  against  the  plain- 
tiffs and  defendants ;  and  the  order  denying  plaintiffs'  motion  for  a 
new  trial,  are  reversed,  and  the  cause  is  remanded,  with  directions 
to  the  district  court  to  grant  a  new  trial.  It  is  further  ordered  that 
the  defendants  recover  of  the  plaintiffs  and  interveners  all  costs 
incident  to  defendants'  appeal  herein,  each  being  liable  as  against  the 
other  for  one-half  thereof,  and  that  the  plaintiffs  recover  of  the  inter- 
veners all  costs  incurred,  both  upon  their  motion  for  a  new  trial  and 
upon  their  appeal.    Reversed  and  remanded. 


BATTERTON  v.  DOUGLAS  MINING  CO.,  Limited. 
191 1.     Supreme  Court  of  Idaho.     120  Pac.  829. 

Action  by  James  L.  Batterton  against  the  Douglas  Mining  Com- 
pany, Limited.  From  a  judgment  for  defendant,  plaintiff  appeals. 
Affirmed. 

Ailshie,  J.^®     *     *     * 

[3]  After  the  entry  by  respondent  had  been  allowed  and  proofs 
accepted,  and  this  particular  tract  of  mineral  land  became  thereby 
segregated  from  the  public  domain,  no  one  had  any  license  or  right 
to  enter  upon  the  land  except  the  entryman  and  the  owner  of  the 
legal  title,  the  United  States.  No  third  person  had  any  right  to  enter 
upon  this  particular  body  of  land,  and  without  the  right  of  entry 
no  legal  discovery  or  location  could  be  made.  Aurora  Hill  Con. 
Min.  Co.  V.  85  Mining  Co.  (C.  C.)  34  Fed.  515;  Belk  v.  Meagher, 

104  U.  S.  279,  26  L.  Ed.  735 ;  Swanson  v.  Kettler,  17  Idaho,  321, 

105  Pac.  1059;  Christy  v.  Scott,  14  How.  292,  14  L.  Ed.  422.  Appel- 
lant relies  chiefly  upon  Murray  v.  Polglase,  23  Mont.  401,  59  Pac. 
439,  and  United  States  v.  Steenerson,  50  Fed.  504,  i  C.  C.  A.  552. 
Murray  v.  Polglase  is  almost  identical  in  facts  with  the  case  at  bar ; 
the  only  material  difference  between  the  two  cases  being  in  the  fol- 
lowing particular:  In  the  present  case,  it  appears  and  has  been 
specifically  found  by  the  trial  court  as  well  as  by  the  General  Land 

"■  Parts  of  the  opinion  are  omitted. 


REQUIREMENT.  339 

Office  that  the  proceedings  on  the  part  of  respondent  in  attempting 
to  procure  a  patent  were  had  in  good  faith,  and  the  law  was  compHed 
with  in  every  respect,  except  that  in  some  manner  the  notice  and 
plat  required  by  law  to  be  posted  were  torn  down  or  removed 
some  27  days  before  the  expiration  of  the  period  of  time  for  posting 
and  publication.  This  appears  to  have  been  done  without  any  fault 
of  the  applicant  for  patent  and  without  the  knowledge  of  the  appli- 
cant. The  notice  had  been  posted  in  good  faith,  and  the  respondent 
and  its  agents  had  reason  to  believe  that  it  had  remained  posted 
during  the  full  period  of  time.  In  the  Murray-Polyglase  Case,  the 
applicant  sought  to  fraudulently  acquire  title  to  the  mining  claim  by 
making  false  affidavits.  The  applicant  for  patent  had  represented 
that  sufficient  work  had  been  done  on  the  claim  to  satisfy  the  require- 
ments of  the  statute  and  rules  of  the  land  office,  whereas  it  was 
shown  that,  as  a  matter  of  fact,  not  more  than  half  enough  work  had 
been  done.  In  that  case  the  Supreme  Court  of  Montana  considered 
the  question  of  fraud  practiced  by  the  applicant  for  patent,  and  held 
that  the  case  was  an  exceptional  one,  and  that  it  should  be  "decided 
upon  its  own  peculiar  facts,"  and  held  that  "where  a  receiver's  re- 
ceipt, showing  that  the  entryman  of  a  mining  claim  is  entitled  to  the 
patent,  is  subsequently  annulled  for  fraud  practiced  in  obtaining  it, 
and  the  entryman  has  failed  to  do  the  annual  representation  work, 
the  claim  is  subject  to  relocation."  It  was  finally  held  by  the  court 
that,  the  applicants  for  patent  having  failed  to  do  the  assessment 
work  regularly  up  to  the  time  of  the  cancellation  of  the  entry,  for- 
feited their  rights,  and  that  the  claims  were  open  to  relocation,  and 
that  the  location  made  by  the  defendants  in  that  case  prior  to  the 
cancellation  of  the  entry  was  valid  and  superior  to  the  claim  of  the 
applicants  for  patent. 

In  the  Steenerson  Case  the  Circuit  Court  of  the  United  States 
for  the  District  of  Minnesota  found  that  a  pre-emption  entry  made 
under  the  land  laws  was  fraudulent,  and  had  been  made  for  the  pur- 
pose of  enabling  the  entryman  to  strip  the  land  of  the  timber  grow- 
ing thereon.  Between  the  time  of  receiving  the  final  receipt  from  the 
local  land  office  and  the  cancellation  thereof  by  order  of  the  commis- 
sioner of  the  General  Land  Office  the  entryman  cut  and  removed  a 
large  amount  of  timber  from  the  land.  The  United  States  thereafter 
instituted  replevin  action  against  the  entryman  for  the  recovery  of 
the  timber.  The  court  held  that  the  receiver's  receipt  did  not  vest 
such  a  title  as  would  afford  the  pre-emptor  a  defense  to  the  action  in 
replevin  where  the  entry  had  subsequently  been  canceled  on  the 
ground  of  fraud.  This  latter  case  is  a  very  different  case  from  the 
one  at  bar.  While  the  Murray-Polglase  Case  is  readily  distinguish- 
able from  the  case  at  bar  on  the  ground  of  the  fraud  which  entered 
into  that  case,  still  the  principle  of  law  upon  which  the  case  was 
determined  appears  to  be  in  conflict  with  the  prevailing  rule  as  the 
same  has  been  announced  by  the  federal  courts.     We  shall  not  at- 


340  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

tempt  to  reconcile  that  case  with  the  cases  hereinbefore  cited,  but 
we  are  incHned  to  the  opinion  that  it  is  distinguishable  from  the 
other  cases  cited  and  the  one  at  bar,  in  that  the  equities  of  that  case 
were  clearly  against  the  patent  applicant  and  with  the  defendant,  the 
subsequent  locator.    *    *    * 

The  judgment  should  be  affirmed,  and  it  is  so  ordered.     Costs 
awarded  in  favor  of  respondent.^ ^ 


(e)  Record  Evidence  of  Performance  of  Annual  Labor. 

COLEMAN  ET  AL.  V.  CURTIS  et  al. 

1892.     Supreme  Court  of  Montana.     12  Mont.  301,  30  Pac.  266. 

Action  by  Lew  Coleman  and  others  against  John  H.  Curtis  and 
others,  under  Rev.  St.  U.  S.  §  2326,  to  determine  adverse  claims  to 
certain  land  located  as  quartz  lode  claims.  Judgment  for  plaintiffs. 
Defendants  appeal.     Affirmed. 

Harwood,  J.^^ — *     *     * 

The  instruction  given  by  the  court  to  the  jury,  objected  to  by  ap- 
pellants as  erroneous,  reads  as  follows :  "It  is  not  necessary  that  the 
labor  done  upon  a  claim  to  represent  it  be  actually  paid  for.  If 
labor  of  sufficient  value  be  done  on  a  claim  within  a  given  year,  that 
is  sufficient,  even  if  it  be  not  paid  for ;  the  payment  being  a  matter 
between  the  laborer  and  the  owners."  Appellants  contend  that  the 
labor  performed,  as  annual  representation  of  a  mining  location,  is 
not  effectual  for  that  purpose,  unless  actually  paid  for ;  that,  although 
such  labor  was  performed  on  the  claim  as  required  by  law,  the  same 
does  not  avail,  unless  the  claimant  has  actually  paid  for  such  labor, 
if  the  work  was  performed  by  another.  On  this  theory  is  predicated 
the  objection  to  the  instruction  recited  above,  and  to  support  their 
position  appellants'  counsel  cite  the  statute  of  this  state,  which  pro- 
vides as  follows : 

"The  owner  or  owners  of  any  quartz  lode  claim,  who  shall  per- 
form, or  cause  to  be  performed,  the  annual  labor  or  make  the  im- 
provements required  by  the  laws  of  the  United  States,  in  order  to 
prevent  a  forfeiture  of  the  claim,  may  at  any  time  during  the  year, 
or  within  60  days  after  the  termination  of  said  year  in  which  said 
work  was  done  or  improvements  made,  file  in  the  office  of  the 
county   clerk   and   recorder  of   the   county   in   which   said   claim   is 

"But  see  contra  where  the  defect  for  which  the  receipt  is  cancelled  is  juris- 
dictional.   McKnight  V.  El  Paso  Brick  Co.,  —  N.  Mex.  —   120  Pac.  694. 
"  Parts  of  the  opinion  are  omitted. 


REQUIREMENT.  341 

situated  an  affidavit  or  affidavits  of  the  person  or  persons  who  per- 
formed such  labor  or  made  such  improvement,  showing — First, 
the  name  of  the  lode,  and  where  situated;  second,  the  num- 
ber of  days'  work  done,  and  the  character  and  value  of  the 
improvements  placed  thereon;  third,  the  date  or  dates  of  per- 
forming said  labor  and  making  said  improvements;  fourth,  at 
whose  instance  or  request  said  work  was  done  or  improvements 
made ;  fifth,  the  actual  amount  paid  for  said  labor  and  improvements, 
and  by  whom  paid,  when  the  same  was  not  done  by  the  owner  or 
owners  of  said  quartz  claim."    Comp.  St.  div.  5,  §  1483- 

In  relation  to  said  affidavit,  the  statute  further  provides  that  "the 
affidavit  or  affidavits  named  in  the  preceding  sections,  or  copies 
thereof,  duly  certified  by  the  recorder  of  the  county,  shall  be  received 
or  admitted  in  evidence  in  any  court  of  justice  in  this  state,  and  be 
prima  facie  proof  of  the  facts  recited  therein."  Comp.  St.  div.  5, 
§  1486.1^ 

The  exaction  of  the  statute  is  that  "not  less  than  one  hundred 
dollars'  worth  of  labor  shall  be  performed  or  improvements  made 
during  each  year"  on  the  mining  claim,  in  order  to  continue  the 
lawful  holding  thereof  by  the  claimant  until  patent  has  been  issued 
therefor.  The  fulfillment  of  that  provision  lies  in  the  performance  of 
the  labor  or  the  making  of  the  improvements  required.  Section  2324, 
Rev.  St.  U.  S.  Section  1483  of  the  fifth  division,  Compiled  Statutes 
of  this  state,  above  quoted,  provides  a  convenient  method  of  preserv- 
ing prima  facie  evidence  of  the  annual  representation  of  mining 
claims,  by  the  performance  of  the  labor  or  making  of  the  improve- 
ments, of  the  value  required  thereon,  by  putting  such  evidence  in 
the  form  of  an  affidavit,  stating  the  facts  required,  and  recording  the 
same  as  provided.  This  statute  relates,  not  to  the  effect  of  doing 
the  work,  or  making  the  improvements,  as  required  by  law,  but  to 
the  method  of  preserving  prima  facie  evidence  of  the  fact  that  such 
requirement  had  been  fulfilled.  Our  opinion  is  that  said  instruction 
of  the  court  to  the  jury  states  a  correct  view  of  said  statute.  We 
have  carefully  examined  all  the  cases  cited  by  appellants'  counsel  in 
support  of  the  construction  of  said  statute  which  he  contends  for, 
and  find  no  support  for  his  theory  in  them.    *    *    * 

A  careful  examination  and  comparison  of  the  evidence  recorded  m 
this  case  leads  us  to  the  conclusion  that  there  is  sufficient  evidence  to 
justify  the  verdict.  The  trial  court  refused  to  set  aside  the  verdict 
and  grant  a  new  trial;  and,  upon  consideration  of  all  the  grounds 
assigned  therefor,  we  are  of  opinion  that  the  order  overruling  appel- 
lants' motion  for  a  new  trial,  and  the  judgment,  should  be  affirmed. 

"In  some  jurisdictions  the  statute  makes  the  failure  to  file  a  proper  affida- 
vit prima  fade  proof  that  the  required  labor  has  not  been  performed. 


342  LABOR,    IMPROVEMENTS    AND   ABANDONMENT, 

(f)   Forfeiture  to  Co-ozvner  for  Failure  to  Contribute. 
ELDER  V.  HORSESHOE  MINING  &  MILLING  COMPANY 

ET  AL. 

1904.     Supreme  Court  of  the  United  States. 
194  U.  S.  248,  48  L.  ed.  960,  24  Sup.  Ct.  643. 

In  error  to  the  Supreme  Court  of  the  State  of  South  Dakota  to 
review  a  judgment  which  affirmed  a  judgment  of  the  Circuit  Court 
of  Lawrence  County  in  that  State,  dismissing,  upon  the  merits,  a 
complaint  in  an  action  to  enforce  an  alleged  trust  in  an  undivided 
interest  in  a  lode  mining  claim.    Affirmed. 

Statement  by  Mr.  Justice  Peckiiam  : 

^  ^  ^ 

In  January,  1878,  Rufus  Wilsey  and  Charles  H.  Havens  located  a 
mining  claim  near  Bald  mountain,  in  the  Whitewood  mining  district, 
Lawrence  county,  South  Dakota,  by  discovering  mineral-bearing 
rock  in  place,  sinking  a  shaft,  posting  discovery  notices,  and  planting 
boundary  stakes  ;  and  on  May  13  of  the  same  year  they  filed  for 
record  their  location  certificate,  which  was  then  recorded.  On  June 
12,  1878,  Wilsey  died,  and  soon  thereafter  the  plaintiffs,  his  heirs  at 
law,  were  informed  of  his  death.  They  knew  that  he  had  left  prop- 
erty, and  from  a  time  shortly  after  his  death  corresponded  with 
different  attorneys  and  others  residing  in  the  Black  hills,  trying  to 
get  something  out  of  the  estate ;  but,  until  the  arrangement  was 
made  with  the  attorneys  under  which  this  action  is  brought,  made  no 
progress  towards  a  settlement.  From  the  time  of  the  death  of 
Wilsey,  in  1878,  up  to  December,  1893,  the  heirs  of  Wilsey  did  noth- 
ing towards  contributing  or  offering  to  contribute  towards  paying 
for  the  annual  labor  made  necessary  by  the  Federal  statute  (Rev. 
St.  §  2324,  U.  S.  Comp.  St.  1901,  p.  1426)  in  order  to  keep  posses- 
sion of  the  mine.     *     *     * 

From  the  time  of  the  location  of  the  mine  up  to  1888,  inclusive, 
Havens,  the  co-owner  with  Wilsey,  did  at  least  $100  worth  of  labor 
each  year  in  order  to  hold  the  claim,  and  filed  on  January  2,  1889, 
an  affidavit  to  that  effect,  including  the  time  from  1880  to  and  in- 
cluding the  year  1887,  and  another  affidavit  to  the  same  effect  for  the 
year  1888.  Under  the  statute  he  published  a  notice  directed  to 
"Rufus  Wilsey,  his  heirs,  administrators,  and  to  all  whom  it  may  con- 
cern," informing  them  that  he  had  expended  $800  in  labor  upon  the 
mine  for  the  years  ending  December  31,  1880,  1881,  1882,  1883,  1884, 
1885,  1886,  and  1887,  and  stating  that  if,  within  ninety  days  after 
this  notice  by  publication,  they  failed  to  contribute  their  proportion, 
$400,  being  $50  for  each  of  said  years,  their  interest  in  said  claim 


REQUIREMENT.  343 

would  become  the  property  of  the  subscriber  under  §  2324  of  the 
Revised  Statutes  of  the  United  States.  Havens  also  published  for 
the  year  1888  a  notice  similar  to  the  one  already  given  in  regard  to 
the  work  done  prior  to  that  year.  The  two  notices  were  published 
in  the  proper  newspaper  and  were  set  out  in  full  and  published  in 
each  daily  issue  of  the  paper  (every  day  in  the  week  except  Sunday), 
beginning  Monday,  January  7,  1889,  and  concluding  Tuesday,  April 
2,  1889,  and  no  more.  Havens  also  continued,  during  the  years  1889, 
1890,  1 89 1,  and  1892,  to  do  at  least  $100  worth  of  work  in  the  mine 
for  the  purpose  of  holding  the  same.  On  August  10,  1892,  Havens 
made  a  deed  of  the  whole  lode  and  mining  claim  to  one  Thomas  H. 
White,  and  on  August  25,  1892,  White  caused  to  be  filed  for  record 
an  affidavit  of  Havens,  which  recited  that  he  was  one  of  the  locators 
of  the  Golden  Sand  lode,  and  that  Wilsey,  his  co-owner,  and  whom 
he  advertised  out  for  not  contributing  his  proportion  of  labor,  had 
not  paid  his  proportion  nor  any  of  the  expenditures  for  holding  the 
claim. 

Questions  were  made  as  to  the  sufficiency  of  the  notices  and  as  to 
the  regularity  of  the  publication  of  the  same  under  the  above  statute 
of  the  United  States.  The  case  was  tried  once  before  and  resulted 
in  a  judgment  for  plaintiffs,  which  was  reversed  by  the  supreme 
court  of  the  state  (9  S.  D.  636,  70  N.  W.  1060)  and  upon  the  new 
trial  the  judgment  was  for  the  defendants.  15  S.  D.  124,  87  N.  W. 
586. 

Mr.  Justice  Peckham,  after  making  the  above  statement  of  facts-*^ 
delivered  the  opinion  of  the  court : 

The  Federal  questions  which  arise  in  this  case  are  based  upon  the 
statute  of  the  United  States  already  referred  to  in  the  foregoing 
statement  of  facts,  being  §  2324  of  the  Revised  Statutes,  the  material 
portion  of  which  is  set  forth  in  the  margin.-''^ 

The  plaintiffs  in  error  contend  that  the  notices  published  by  or  in 
behalf  of  the  defendants  in  error  were  not  a  compliance  with  the  stat- 
ute because  of  the  manner  in  which  they  were  addressed.  They  also 
insist  that,  even  assuming  the  sufficiency  of  the  notices,  they  were  not 
published  in  accordance  with  the  requirements  of  the  statute  for  a 
sufficient  length  of  time,  and  that,  therefore,  the  title  of  the  plaintiffs 
in  error  was  not  devested.  We  are  not  impressed  with  the  validity 
of  either  of  the  two  objections. 

As  to  the  first.  The  notice  was  addressed  as  follows :  "To  Rufus 
Wilsey,  his  heirs,  administrators,  and  to  all  whom  it  may  concern." 
The  objection  made  is  that  at  the  time  when  this  notice  was  pub- 
lished Rufus  Wilsey  was  dead,  and  there  was  no  administrator  then 
existing,  and  the  names  of  the  heirs  were  not  given,  and  the  notice, 
"to  whom  it  may  concern,"  was  futile. 

^  The  statement  of  facts  is  abbreviated. 

*a  The  section  is  omitted  here.   It  is  found  on  p.  305,  ante. 


344  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

The  statute,  it  will  be  observed,  does  not  require  that  the  published 
notice  in  regard  to  a  deceased  co-owner  shall  be  directed  to  anyone 
by  name.  Upon  the  failure  of  a  co-owner  to  contribute  his  proportion 
of  the  expenditure  required  under  the  section,  the  co-owner  who  has 
performed  the  labor  or  made  the  improvements  may,  as  provided  for 
by  the  section  at  the  expiration  of  the  year,  give  such  delinquent  co- 
owner  personal  notice  in  writing  or  notice  by  publication  in  the  news- 
paper published  nearest  the  claim,  and  if,  at  the  expiration  of  ninety 
days  after  such  notice  in  writing,  or  by  publication,  the  delinquent 
refuses  to  contribute  his  proportion  or  fails  to  do  so,  his  interest  in 
the  claim  thereby  becomes  the  property  of  his  co-owners  who  have 
made  the  required  expenditures.  We  perceive  no  possible  harm 
arising  from  the  fact  that  the  notice  itself,  containing  all  the 
facts  necessary  to  be  included  therein,  was  addressed  to  "Rufus 
Wilsey,  his  heirs,  administrators,  and  to  whom  it  may  con- 
cern." The  fact  that  Rufus  Wilsey  was  dead  was  not  material 
so  far  as  to  thereby  render  the  notice  to  his  heirs  illegal  or  in- 
sufficient. It  certainly  did  them  no  harm  to  include  the  name  of 
Rufus  Wilsey,  and  the  notice  was  quite  as  likely  to  become  known 
to  them  as  if  it  had  been  addressed  "to  the  heirs  of  Rufus  Wilsey, 
deceased,  his  administrators,  and  to  all  whom  it  may  concern."  It 
is  entirely  unlike  the  publication  of  a  summons  for  the  purpose  of 
commencing  an  action  against  a  particular  individual  or  individuals. 
There  the  identification  must  be  complete  and  the  person  particularly 
described  and  named,  so  that  when  the  publication  has  been  finished 
it  can  be  known  that  the  particular  individual  has  been  served  with 
process  by  publication  with  the  same  effect  as  if  it  had  been  person- 
ally served  on  the  same  individual  without  publication.  This  statute 
provides  a  summary  method  for  the  purpose  of  insuring  the  proper 
contribution  of  co-owners  among  themselves  in  the  working  of  the 
mine,  and  it  provides  a  means  by  which  a  delinquent  co-owner  may 
be  compelled  to  contribute  his  share,  under  the  penalty  of  losing  his 
right  and  title  in  the  property  because  of  such  failure.  It  was  not 
necessary,  in  our  judgment,  that  the  notice  should  specifically  name 
the  heirs  of  the  deceased  owner.  The  act  does  not  require  it.  If  the 
notice  be  such  that  the  former  owner  is  particularly  named  and 
identified  thereby,  and  his  heirs  are  notified  by  the  publication,  it  is 
a  sufficient  notice  to  them  for  the  purpose  of  making  it  necessary 
for  them  to  comply  with  the  terms  of  the  statute  within  the  time 
designated  therein  by  the  payment  of  their  share  of  the  expenses  of 
working  the  mine,  or  else  to  lose  their  right,  title,  and  interest 
therein.  The  co-owner  who  did  the  work  might  not  know  who  the 
heirs  were,  and  it  might  be  impossible  for  him  to  learn  their  names 
or  whereabouts,  and  the  statute  never  contemplated  that  the  man 
who  did  the  work  should  be  prevented  from  obtaining  the  benefit  of 
the  statute  by  his  inability  to  learn  who  the  heirs  were  and  where 
they  lived.     A  general  address  to  the  heirs  of  the  person  named, 


REQUIREMENT.  345 

and  the  proper  publication  of  the  notice,  is  sufficient.  It  did  not  be- 
come insufficient  because,  in  addition  to  being  addressed  to  them,  it 
was  also  addressed  to  their  intestate  by  name.  An  address  to  a 
deceased  person  did  them  no  harm,  so  long  as  it  was  also  addressed 
to  them. 

The  supreme  court  of  South  Dakota  has  held  in  this  case  that  at 
the  time  this  notice  was  published  the  title  to  a  one-half  interest 
in  this  claim  was  in  the  heirs,  subject  to  a  possible  lien  of  the  ad- 
ministrator for  administration  purposes,  and  had  been  since  the 
death  of  Wilsey.  9  S.  D.  636,  642,  70  N.  W.  1060.  The  same  court 
has  held  that  an  administrator  has  but  a  lien  on  real  estate  for  admin- 
istrative purposes,  and  that  the  title  vests  in  the  heirs.  (Cases  cited 
in  opinion  of  the  state  court.)  The  only  debt,  so  far  as  the  record 
shows,  existing  against  the  estate  of  Wilsey,  was  one  for  $50  in  favor 
of  Stevens,  who  was  appointed  administrator  in  1881,  and  died  in 
1888,  and  from  then  until  1893  there  was  no  administrator,  the  pres- 
ent one  being  appointed  evidently  for  the  purpose  of  this  suit.  The 
actual  title  to  the  fee  is  in  the  government  (Black  v.  Elk  horn  Min. 
Co.  163  U.  S.  445,  449,  41  L.  ed.  221,  223,  16  Sup.  Ct.  Rep.  iioi), 
but  the  interest  of  the  miner  may  be  conveyed  and  inherited.  (Id. 
Id.)  We  are  of  opinion  that  the  publication  of  the  notice  was  suffi- 
cient, although  there  was  no  administrator  at  the  time  of  publication. 
It  is  unnecessary  under  this  statute  to  publish  a  notice  to  lienors.  We 
agree  with  the  supreme  court  of  the  state  that  the  evident  purpose 
and  object  of  the  law  of  1872  (§  2324)  were  to  encourage  the 
exploration  and  development  of  the  mineral  lands  of  the  United 
States,  and  the  sale  of  the  same,  and  that,  all  the  provisions  of  the 
law  having  been  framed  with  that  object  in  view,  if  the  required 
work  is  not  performed,  after  the  expiration  of  the  year,  and  notice 
of  contribution  properly  served  or  sufficiently  published,  the  rights 
of  delinquents  are  absolutely  cut  off,  though  the  failure  to  do  the 
work  may  have  been  caused  by  the  death  of  the  locator  or  locators 
during  the  year.  When  a  notice  has  been  rightfully  published  under 
the  statute  it  becomes  effective  in  cutting  off  the  claims  of  all  parties, 
and  the  title  is  thus  kept  clear  and  free  from  uncertainty  and  doubt. 

There  was  no  irregularity  in  grouping  in  one  notice  claims  for 
more  than  one  year's  expenditures.  We  can  perceive  no  reason  why 
a  consolidation  of  the  claims  of  several  years  should  not  be  made 
and  included  in  one  and  the  same  notice. 

(2.)  The  objection  to  the  sufficiency  of  the  publication  of  the 
notice  we  regard  as  equally  unfounded.  The  statute  provides  for  a 
publication  "for  at  least  once  a  week  for  ninety  days."  The  publica- 
tion was  in  fact  made  every  day,  except  Sunday,  in  the  proper  news- 
paper, beginning  Monday,  January  7,  1889,  and  concluding  Tuesday, 
April  2,  1889.  And  the  statute  provides  that  if,  after  the  expiration 
of  ninety  days  after  such  notice  in  writing  or  publication,  such  de- 
linquent should  fail  or  refuse  to  contribute  his  proportion  of  the  ex- 


346  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

penditure  required  by  this  section,  his  interest  in  the  claim  shall  be- 
come the  property  of  his  co-owners  who  have  made  the  required  ex- 
penditures. The  publication,  we  think,  was  sufficient.  The  ninety- 
day  period  begins  with  the  first  publication ;  in  this  case,  Monday, 
January  7,  The  publication  on  that  day  was  sufficient  for  the  week 
then  beginning.  The  publication  on  January  15,  was  sufficient  for 
that  week,  and,  as  stated  by  the  supreme  court  of  South  Dakota : 
"Each  succeeding  Monday  would  certainly  constitute  at  least  one 
publication  each  week  while  so  continued.  There  was  a  publication 
on  each  Monday  from  January  7  to  April  i,  both  inclusive.  If  no 
publication  was  required  after  the  first  until  the  following  Monday, 
none  was  required  after  April  i  until  the  following  Monday,  April 
8,  and  on  that  day  the  period  of  ninety  days  had  been  completed. 
Including  the  first  day  of  publication,  ninety  days  ended  on  Saturday, 
April  6.  Excluding  the  first  day,  ninety  days  ended  on  Sunday, 
April  7.  On  that  day  the  required  notice  had  continued  during 
ninety  days,  and  another  publication  on  Monday,  April  8,  was  wholly 
unnecessary." 

We  are  satisfied  that  this  construction  is  the  correct  one,  and  the 
publication  was,  therefore,  made  for  a  sufficient  length  of  time  to 
comply  with  the  statute. 

The  jiidgincnt  of  the  Supreme  Court  of  South  Dakota  is  affirmed. 


TURNER  V.  SAWYER. 

(See  post,  p.  574,  for  a  report  of  the  case.) 


HAYNES  ET  AL.  V.  BRISCOE. 
1901.     Supreme  Court  of  Colorado.     29  Colo.  137,  67  Pac.  156. 

Action  by  George  Cole  Briscoe  against  William  Haynes  and 
others.  From  a  judgment  in  favor  of  plaintiff,  defendants  appeal. 
Affirmed. 

Steele,  J.-^ — The  title  to  two  mining  claims,  the  Bull  Domingo 
and  the  Bull  Domingo  No.  2,  is  involved  in  this  controversy.  George 
Cole  Briscoe,  the  plaintiff,  owned  64-90  of  the  claims,  and  in  1896 
conveyed  to  his  co-owner,  Haynes,  19-90  in  payment,  so  he  alleges 
in  his  complai'xit,  for  assessment  work  done  on  the  claims  by  Haynes 
for  the  year  1895  and  to  be  done  for  the  year  1896.     In  January, 

"  Part  of  the  opinion  is  omitted. 


REQUIREMENT,  347 

1897,  Haynes  caused  to  be  published  in  the  Pitkin  Miner,  a  news- 
paper pubhshed  at  the  town  of  Pitkin,  a  notice  of  forfeiture  because 
of  the  alleged  failure  of  Briscoe  to  contribute  his  proportion  of  the 
expenditures  upon  the  claims  for  the  year  1896;  and  during  the 
month  of  August,  1897,  the  notice  and  proof  of  publication,  together 
with  an  affidavit  of  Haynes,  were  recorded  in  Gunnison  county. 
Haynes  having  on  July  31,  1897,  conveyed  to  the  defendants  Perre- 
ault,  McManes,  and  Roiif  undivided  interests  in  the  claims,  they  all 
joined  in  a  lease  to  the  defendant  Hallett,  a  copy  of  which  is  set 
forth  in  the  complaint.  The  plaintiff,  in  the  complaint,  alleges  on 
information  and  belief  that  Haynes  did  not  perform  the  work  upon 
the  claims  in  1896,  or  at  any  time  prior  to  the  publication  of  the 
notice,  and  that  Haynes,  Perreault,  McManes,  and  Roff  conspired  to 
cheat  and  defraud  plaintiff  of  his  interest  in  the  claims.  The  plain- 
tiff further  alleges  that  the  said  Pitkin  Miner  was  not  the  newspaper 
published  nearest  to  said  mining  claims,  and  was  not  a  paper  in 
which  said  notice  of  forfeiture  could  legally  be  published,  and  that 
there  were  other  newspapers  published  nearer  the  claims  than  the 
said  Pitkin  Miner.  The  defendants,  in  their  answer,  deny  the  agree- 
ment alleged  between  the  plaintiff  and  the  defendant  Haynes ;  allege 
that  Haynes  did  the  assessment  work  upon  the  claims  for  the  year 
1896,  but  deny  that  the  work  was  done  for  or  in  behalf  of  plaintiff; 
deny  a  conspiracy ;  deny  that  there  were  newspapers  published  nearer 
the  claims  than  the  Pitkin  Miner.  The  other  allegations  of  the  com- 
plaint material  to  a  decision  are  admitted.  The  cause  was  tried  by 
the  court,  and  judgment  rendered  for  the  plaintiff.  The  defendants, 
except  Hallett  and  the  bank,  have  perfected  an  appeal  to  this 
court.    *    *    * 

These  claims  are  located  on  Italian  Mountain,  in  Gunnison  county, 
and  the  plaintiff  alleged  in  his  complaint  that  the  notice  published 
in  the  Pitkin  Miner  was  not  notice  to  him,  because  the  statute  re- 
quires ,  the  notice  to  be  published  "in  the  newspaper  nearest  the 
claim."  Haynes  testified  that  the  distance  from  the  claims,  by  "the 
usual  traveled  route,"  to  Pitkin,  where  the  notice  was  published,  is 
about  41  miles,  and  that  by  the  usual  traveled  route  it  was  about 
100  miles  from  the  claim  to  Crested  Butte.  "You  would  have  to  go 
to  Pitkin,  and  from  Pitkin  to  Gunnison,  and  from  Gunnison  to 
Crested  Butte,"  said  the  witness.  The  defendant  sought  to  establish 
the  fact  that  during  the  winter  and  spring  of  1897  the  nearest  place 
"by  the  usual  traveled  route"  was  Pitkin.  The  court  correctly  held, 
however,  that  the  season  of  the  year  cannot  be  a  factor  in  determin- 
ing the  question,  and  that,  unless  the  newspaper  at  Pitkin  was  the 
nearest,  irrespective  of  the  season  or  of  the  condition  of  the  weather, 
it  was  not  the  nearest  newspaper,  within  the  meaning  of  the  statute. 
No  decision  his  been  cited  construing  the  words  of  this  statute. 
There  are  numerous  decisions  of  the  secretary  of  the  interior  con- 
struing the  statute  requiring  publication  of  application  for  patent 


34^  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

(section  2325,  Rev.  St.  U.  S.)  ;  but  we  think  the  two  sections  are 
entirely  different.  The  section  now  under  consideration  requires 
that  pubHcation  be  made  in  "a  newspaper  pubHshed  nearest  the 
claim."  In  the  section  under  consideration  by  the  secretary  of  the 
interior  in  the  cases  cited,  the  statute  requires  publication  by  the 
register  "in  a  newspaper  to  be  by  him  designated  as  published  near- 
est to  such  claim."  The  defendant  offered  to  show  that  copies  of  the 
newspaper  were  sent  to  the  plaintiff.  The  court  properly  refused  the 
offer.  The  notice  must  be  by  publication  or  by  personal  service,  and 
personal  service  cannot  be  had  by  sending  through  the  mail  a  copy 
of  the  newspaper  in  which  the  notice  is  published ;  and  proving  that 
the  person  to  whom  the  notice  is  directed  received  the  paper  is  not 
sufficient. 

The  act  of  congress  authorizing  the  procedure  whereby  the  prop- 
erty of  the  co-owner  is  forfeited  must  be  strictly  construed ;  and  the 
defendants,  upon  whom  was  the  burden  of  proof,  having  failed  to 
show  that  the  Pitkin  Miner  was  the  newspaper  "published  nearest 
to  the  claim,"  it  follows  that  the  service  and  subsequent  acts  were 
void,  and  that  the  plaintiff  is  the  owner  of  an  undivided  one-half  of 
the  Bull  Domingo  and  Bull  Domingo  No.  2  claims,  and  entitled  to 
possession.  In  this  construction  of  the  statute  my  associates  do  not 
concur.  They  are  of  opinion  that  the  notice  itself  is  fatally  defective, 
in  that  it  does  not  specify  the  amount  of  money  spent  upon  each 
claim,  nor  the  facts  which  might  excuse  expenditure  upon  each 
claim.  All  the  members  of  the  court  agree  that  the  case  should  be 
affirmed.  My  associates  do  not  place  upon  the  statute  a  different 
construction  than  that  mentioned  in  the  opinion,  but  base  their  judg- 
ment of  affirmance  upon  the  grounds  mentioned.  I  do  not  insist  that 
the  notice  is  sufficient,  but  think  the  judgment  should  be  affirmed 
upon  the  theory  adopted  by  the  trial  court. 

The  judgment  of  the  district  court  is  affirmed. 

Affirmed. 


ROYSTON  V.  MILLER  et  al. 

1896.     Circuit  Court,  D.  Nevada.     76  Fed.  50. 

Hawley,  District  Judge  (orally). 22 — This  is  a  suit  in  equity  for 
an  acounting  and  for  partition  of  a  group  of  mining  claims  known  as 
the  "Kingston  Mines,"  situated  in  Victorine  mining  district.  Lan- 
der county,  Nev.,  and  of  the  "Irvine  Tunnel,"  run  for  the  purpose 
of  prospecting  and  developing  said  mining  claims.  This  group 
consists  of  four   different   claims,   known   as   the   "Provider,"   the 

"  Parts  of  the  opinion  are  omitted. 


REQUIREMENT,  349 

"Morse,"  the  "California,"  and  the  "Chicago."  The  first  three  are 
contiguous.  The  Chicago  is  separated  from  them  by  the  "Vic- 
torine,"  a  patented  mining  claim  owned  by  other  parties.  Prior 
to  October,  1891,  George  E.  Spencer  and  J.  C.  Irvine  were  co-owners 
of  the  property  involved  in  this  suit.  During  that  month,  Spencer 
conveyed  to  his  wife,  Mrs.  William  Loring  Spencer,  his  entire  inter- 
est in  the  property.  On  September  i,  1893,  Mrs.  Spencer  con- 
veyed her  interest  therein  to  complainant.  The  interest  of  defend- 
ant Miller  is  in  the  nature  of  a  trustee  for  the  defendant  Irvine. 
There  is  a  controversy  between  the  parties  as  to  their  respective 
interests  in  a  portion  of  said  property,  and  also  upon  the  question 
as  to  whether  the  property  can  be  divided  without  material  in- 
jury. But  the  defendants  contend  that  the  grantors  of  complainant 
forfeited  all  their  rights  to  the  property  by  a  failure  on  their  part 
to  perform  or  contribute  their  proportion  of  the  assessment  work 
upon  said  claims  for  the  year  1893,  and  especially  of  the  Chicago 
claim  for  the  year  1892.  This  question  of  alleged  forfeiture  will 
be  first  considered.  The  evidence  shows  that  the  co-owners,  from 
the  year  1888,  when  they  commenced  to  run  the  Irvine  tunnel,  up  to 
1892,  performed  more  than  sufficient  work  to  hold  all  the  claims  each 
year ;  that  during  all  this  time,  up  to  the  time  Spencer  disposed  of 
his  interest,  Irvine  was  the  agent  of  Mr.  Spencer  in  performing  the 
work  and  caring  for  the  property ;  and  that  Spencer  relied  upon  and 
trusted  him  to  properly  do  the  necessary  amount  of  assessment  work 
upon  each  of  said  claims.  In  the  year  1892,  more  than  $1,000  worth 
of  work  and  labor  was  done  and  performed  on  the  Irvine  tunnel ; 
and  this  was  done,  as  in  previous  years,  for  the  express  purpose  of 
holding  all  of  the  claims, — the  Chicago  as  well  as  the  three  others 
that  were  contiguous  to  each  other.  The  relations  existing  between 
Spencer  and  Irvine,  when  the  work  was  done  upon  the  tunnel, 
prior  to  August,  1892,  were  friendly  and  fiduciary  in  their  char- 
acter. During  that  month,  for  reasons  unnecessary  to  state,  the 
friendly  relations  ceased ;  and  thereafter  Irvine,  on  his  own  ac- 
count, performed  the  necessary  amount  of  work  on  the  Chicago 
claim  to  hold  it  for  the  year  1892.  In  1893,  Irvine  did  sufficient 
work  on  the  Irvine  tunnel,  prior  to  November  3d,  to  hold  all  of 
said  claims.  Mrs.  Spencer,  who  had  succeeded  to  the  interests 
of  her  husband  in  the  property,  had  employed  a  man  to  work 
jointly  with  her  son  to  do  her  proportion  of  the  assessment  work 
for  that  year.  But,  at  the  time  the  work  was  done  by  Irvine,  she 
was  engaged  in  attending  to  the  crops  on  a  ranch  in  the  vicinity 
of  the  mines,  and  expressed  her  desire  not  to  commence  the  assess- 
ment work  on  the  tunnel  until  the  work  then  being  done  upon 
the  ranch  was  finished,  and  which  would  still  give  plenty  of  time 
to  perform  the  assessment  work  for  that  year.  In  the  meantime 
(after  Irvine  had  completed  the  work),  she  learned  of  the  passage 
of  the  amendatory  act  to  section  2324  of  the  Revised  Statutes  of  the 


350  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

United  States,  and  availed  herself  of  its  provisions  by  complying 
therewith,  and  did  not  either  perform  any  assessment  work  on  the 
claims,  nor  contribute  her  proportion  of  the  work  and  labor  done 
and  performed  by  Irvine.  Irvine,  having^  performed  the  necessary 
assessment  work,  published  the  demand  and  notice  for  contribu- 
tion, as  provided  for  by  section  2324,  for  the  period  of  90  days 
beginning  January  27,  1894,  and  made  proof  of  the  publication  and 
demand,  and  had  the  same  duly  recorded. 

Was  the  interest  of  Spencer  forfeited  by  his  failure  to  contribute 
to  the  assessment  work  done  by  Irvine  on  the  Chicago  claim  in 
1892?  Did  complainant's  grantor  forfeit  her  interest  in  the  con- 
tiguous group  of  mining  claims  by  her  failure  to  do  any  work,  or  to 
contribute  her  proportion   for  the  work  done  by  Irvine,  in   1893? 

Section  2324,  among  other  things,  provides  as  follows  : 

"Upon  the  failure  of  any  one  of  several  co-owners  to  contribute  his  propor- 
tion of  the  expenditures  required  hereby,  the  co-owners  who  have  performed 
the  labor  or  made  the  improvements  may,  at  the  expiration  of  the  year,  give 
such  delinquent  co-owner  personal  notice  in  writing  or  notice  by  publication 
in  the  newspaper  published  nearest  the  claim,  for  at  least  once  a  week  for 
ninety  days,  and  if  at  the  expiration  of  ninety  days  after  such  notice  in 
writing  or  by  publication  such  delinquent  should  fail  or  refuse  to  contribute 
his  proportion  of  the  expenditure  required  by  this  section,  his  interest  in  the 
claim  shall  become  the  property  of  his  co-owners  who  have  made  the  re- 
quired expenditures." 

On  the  3d  day  of  November,  1893,  section  2324  was  amended 
as  follows : 

"That  the  provisions  of  section  2324  of  the  Revised  Statutes  of  the  United 
States  which  require  that  on  each  claim  located  after  the  10th  day  of  May, 
1872,  and  until  patent  has  been  issued  therefor,  not  less  than  one  hundred 
dollars'  worth  of  labor  shall  be  performed  or  improvements  made  during  each 
year,  be  suspended  for  the  year  1893,  so  that  no  mining  claim  which  has  been 
regularly  located  and  recorded  as  required  by  the  local  laws  and  mining 
regulations  shall  be  subject  to  forfeiture  for  nonperformance  of  the  annual 
assessment  for  the  year  1893  :  provided,  that  the  claimant  or  claimants  of  any 
mining  location,  in  order  to  secure  the  benefits  of  this  act,  shall  cause  to  be 
recorded  in  the  office  where  the  location  notice  or  certificate  is  filed  on  or  be- 
fore December  31st,  1893,  a  notice  that  he  or  they,  in  good  faith  intend  to 
hold  and  work  said  claim."    28  Stat.  6. 

I.  The  work  done  upon  the  Irvine  tunnel  in  1892,  as  well  as 
in  the  previous  years,  was  wholly  insufficient  to  constitute  a  com- 
pliance with  the  provisions  of  section  2324  as  to  the  amount  of 
the  annual  assessment  work  to  be  performed  on  the  Chicago  claim. 
It  was  only  sufficient  to  hold  the  three  mining  claims  that  were 
contiguous,  viz.  the  Provider,  Morse,  and  California.  Chambers 
v.  Harrington,  in  U.  S.  350,  4  Sup.  Ct.  428;  Mining  Co.  v. 
Callison,  5  Sawy.  440,  457,  Fed.  Cas.  No.  9,886.  The  construction 
and  policy  of  the  statute  in  this  respect  was  to  require  every  per- 


REQUIREMENT.  35 1 

son  asserting  an  exclusive  right  to  a  mining  claim  to  expend  some- 
thing of  labor  or  value  upon  it,  as  evidence  of  his  good  faith. 
In  Chambers  v.  Harrington,  the  court  said : 

"When  several  claims  are  held  in  common,  it  is  in  the  line  of  this  policy 
to  allow  the  necessary  work  to  keep  them  all  alive  to  be  done  on  one  of  them. 
But,  obviously,  on  this  one  the  expenditure  of  money  or  labor  must  equal  in 
value  that  which  would  be  required  on  all  the  claims  if  they  were  separate  or 
independent.  It  is  equally  clear  that  in  such  cases  the  claims  must  be  con- 
tiguous, so  that  each  claim  thus  associated  may  in  some  way  be  benefited  by 
the  work  done  on  one  of  them." 

Undoubtedly,  a  third  party  could  have  made  a  valid  location  of 
the  Chicago  claim  by  reason  of  the  failure  of  the  owners  to  do  the 
assessment  work  for  1892,  and  could  have  obtained  a  valid  title 
thereto  by  a  compliance  with  the  mining  laws.  But  the  ques- 
tion whether  one  of  the  co-owners  could,  under  the  facts  of  this 
case,  obtain  any  right  as  against  the  other  co-owners  in  the  claim, 
rests  upon  an  entirely  different  principle.  The  necessary  work 
was  done  upon  the  tunnel  by  Irvine,  for  himself  and  as  agent  of 
the  others,  under  the  mistaken  idea  that  the  work  so  done  was 
sufficient  to  hold  the  four  claims.  Irvine  reported  that  sufficient 
w^ork  had  been  done  to  hold  all  the  claims.  It  was  his  duty  to  do 
the  necessary  work  to  hold  each  claim.  He  could  not  take  advan- 
tage of  his  own  wrong.  By  doing  the  extra  work  on  the  Chicago 
he  did  not  gain  any  right  for  himself  which  he  could  set  up  against 
his  co-owners  in  the  claim.    *    *    * 

2.  With  reference  to  the  work  done  in  1893:  The  contention  of 
the  defendants  is  that  Irvine  had  a  vested  right  to  contribution 
from  his  co-owner  upon  his  completion  of  the  annual  assessment 
work  for  that  year,  and  that,  such  co-owner  having  failed  to  con- 
tribute her  proportion,  and  Irvine  having  given  the  notice  and 
deman.d  for  the  required  time,  at  the  end  of  90  days,  thereby  be- 
came the  owner  of  the  property.  The  contention  of  complainant 
is  that,  when  congress  suspended  the  forfeiture  clause  for  nonper- 
formance of  the  annual  assessment  work  for  the  year  1893,  no 
such  rights  to  such  forfeiture  existed,  and  no  forfeiture  could 
thereafter  be  enforced  between  the  co-owners  for  the  work  pre- 
viously done  by  Irvine,  and  that  the  only  remedy  would  be  an  action 
for  contribution  between  the  co-owners  for  expenditures  incurred 
or  made  for  the  common  benefit  of  all  the  owners.  Which  contention 
is  correct?  Under  the  statute  as  it  existed  prior  to  the  amend- 
ment, the  owners  of  mining  claims  had  until  December  31,  1893, 
to  do  the  annual  assessment  work.  It  cannot,  therefore,  be  said 
that  any  vested  right  to  forfeiture  occurred,  or  could  occur,  prior 
to  the  expiration  of  that  time.  A  vested  right  is  property  arising 
from  contract  or  from  the  principles  of  the  common  law,  which 
cannot  be  destroyed,  divested,  or  impaired  by  legislation.      In  cases 


352  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

where  a  contract  is  made  and  executed  in  pursuance  of  a  statute, 
which  also  prescribes  the  parties  against  whom  and  the  mode 
in  which  it  may  be  enforced,  the  right  to  enforce  it  in  the  man- 
ner prescribed  is  a  part  of  the  contract,  and  is  not  affected  by  a 
subsequent  act  repealing  the  provisions  in  reference  to  the  enforce- 
ment of  the  contracts  authorized  by  the  statute  under  which  it 
was  made.  But  imperfect  and  inchoate  rights  are  subject  to  future 
legislation,  and  may  be  extinguished  while  in  that  condition.  At 
the  time  Irvine  completed  the  assessment  work,  he  did  not  have 
such  a  vested  right  of  recovery  by  contract  as  prevented  congress 
from  repealing  or  suspending  the  provisions  of  the  statute  in 
so  far  as  it  provided  for  a  forfeiture.  The  suspension  of  the 
provisions  of  the  statute  requiring  annual  work  to  be  done  neces- 
sarily suspended  the  right  of  forfeiture.  The  forfeiture  imposed  by 
the  statute  was  for  failing  to  do  the  work  which  the  law  then  re- 
quired to  be  done.  The  suspendatory  or  amendatory  act  provided 
that  the  work  hitherto  required  need  not  be  done  in  1893,  and 
hence  it  follows  that  the  right  of  forfeiture  could  not  thereafter 
exist  for  any  act  omitted  in  that  respect  during  that  year.  The 
enforcement  of  a  forfeiture  cannot  be  had  when  the  law  excuses 
the  performance  of  the  condition.  The  general  rule  is  that  stat- 
utes providing  for  forfeitures  must  be  strictly  construed.  They 
are,  to  that  extent,  analogous  to  penal  statutes ;  and  the  rule  is 
well  settled  that  actions  on  statutes  in  their  nature  penal,  pending 
at  the  time  of  the  repeal  of  such  statutes,  cannot  be  further  prose- 
cuted after  such  repeal  unless  the  repealing  act,  in  terms,  saves 
the  right  to  prosecute  pending  suits.  There  is  no  such  thing  as 
a  vested  interest  in  an  unenforced  penalty  or  forfeiture.  Norris 
v.  Crocker,  13  How.  429;  U,  S.  v.  Claflin,  97  U.  S.  546,  553;  Rail- 
road Co.  V.  Grant,  98  U.  S.  398,  401 ;  U.  S.  v.  Auffmordt,  122  U.  S. 
197,  209,  7  Sup.  Ct.  1 182;  Id.,  19  Fed.  893;  Bank  v.  Peters,  144 
U.  S.  570,  12  Sup.  Ct.  767;  Iron  Co.  v.  Pierce,  4  Biss.  327,  Fed. 
Cas.  No.  14,367;  Lamb  v.  Schottler,  54  Cal.  319,  325;  Railway  Co. 
v.  Crawford,  11  Colo.  598,  19  Pac.  673;  Railroad  Co.  v.  Austin,  21 
Mich.  390,  397 ;  Gregory  v.  Bank,  3  Colo.  332,  336.  In  support  of 
the  text  that  "the  repeal  of  a  statute  prescribing  a  penalty  or  for- 
feiture recoverable  in  a  civil  action  takes  away  the  right  of  re- 
covery," numerous  authorities  are  cited  in  23  Am.  &  Eng.  Enc. 
Law,  509,  and  it  is  there  stated  that  there  is  no  vested  right  in  the 
penalty  or  forfeiture  until  recovery  has  been  had  by  final  judg- 
ment. It  is  fair  to  presume  that  congress  intended  the  amenda- 
tory act  to  apply  to  all  cases,  and  to  release  the  owners  from  any 
forfeiture  where  the  amount  of  annual  work  had  been  done  by  one 
of  the  co-owners  before  the  passage  of  the  amendatory  act,  as  well 
as  to  the  failure  of  doing  the  work  after  the  passage  of  the  amend- 
ment ;  otherwise,  a  proviso  should,  and  doubtless  would,  have  been 
inserted  to  the  effect  that  the  amendment  should  not  apply  to  cases 


REQUIREMENT.  353 

where  the  annual  work  had  been  done,  so  as  to  deprive  such  co- 
owner  of  the  right  to  have  the  interest  of  his  co-owner,  who  failed 
to  contribute,  forfeited.  The  amendatory  act,  in  fact,  suspended 
the  statute  for  the  year  1893 ;  and,  the  statute  being  suspended, 
there  could  be  no  forfeiture.  There  being  no  contractual  relations 
between  the  parties  to  be  impaired  by  such  an  amendment,  and 
no  vested  right  having  accrued  to  Irvine,  it  was  within  the  power 
of  congress  to  pass  the  act,  and  it  is  the  duty  of  the  court  to  up- 
hold it.  The  contention  of  the  defendants  cannot  be  sus- 
tained.^^   *    *    * 

4.  The  next  question  is  whether  the  court  should  decree  a  sale 
or  order  a  partition  of  the  property.  The  statutes  of  Nevada  pro- 
vide that : 

"When  the  action  is  for  partition  of  a  mining  claim  among  the  tenants  in 
common,  joint  tenants,  co-parceners  or  partners  thereof,  the  court,  upon  good 
cause  shown  by  any  party  or  parties  in  interest,  may,  instead  of  ordering  par- 
tition to  be  made  in  manner  as  hereinbefore  provided,  or  a  sale  of  the  prem- 
ises for  cash,  direct  the  referees  to  divide  the  claim  in  manner  hereinafter 
specified."    Gen.  St.  Nev.  §  3334. 

The  defendants  contend,  and  the  evidence  on  their  behalf  tends 
to  show,  that  the  Kingston  group  of  mines,  which  are  contiguous, 
can  only  be  economically  worked  through  the  Irvine  tunnel ;  that 
this  tunnel  is  run  upon  the  Morse  ground,  near  the  center  of  the 
location ;  that  it  has  but  one  track ;  that  two  companies  could  not 
work  through  the  same  tunnel ;  and  that  no  division  could  be  made 
that  would  not  be  detrimental  to  both  parties.  On  the  other 
hand,  it  is  argued  by  complainant — and  the  testimony  on  her  be- 
half tends  to  support  the  argument — that  a  division  can  be  made 
withotit  injury  to  the  parties;  that  her  interest  would  be  jeop- 
ardized by  a  sale  of  the  property,  as  she  is  possessed  of  limited 
means,  and  the  defendants  would  be  in  a  position  to  purchase  the 
property  on  their  own  terms ;  and  that  the  only  practicable  way  to 
develop  the  property  is  by  an  incline,  instead  of  throtigh  the  ttinnel. 
The  evidence  shows  that  it  would  cost  in  the  neighborhood  of  $3,000 
to  complete  the  ttmnel  in  order  to  reach  the  lode.  There  is  no  evi- 
dence as  to  the  particular  value  of  either  of  the  mining  locations, 
except  that,  in  the  opinion  of  some  of  the  witnesses,  the  Morse  is 
more  valuable  than  the  others.  The  reasons  given  by  the  respective 
witnesses  upon  these  questions  are  of  about  equal  weight.     This 

"  The  courts  will  go  far  to  prevent  a  forfeiture.  "A  tender  to  a  part  owner  of 
a  mining  claim  of  a  sum  which  he  claimed  to  be  due  him  for  assessment  work 
from  a  co-tenant,  made  by  a  friend  of  the  latter  for  the  purpose  of  prevent- 
ing a  forfeiture  of  his  rights  under  the  statute,  although  not  authorized  at  the 
time,  is  valid  and  effective,  where  it  was  ratified  at  once  when  made  known  to 
the  person  in  whose  behalf  it  was  made."  Syllabus  to  Forderer  v.  Schmidt, 
84  C.  C.  A.  426,  154  Fed.  475. 

23 — Mining  Law 


354  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

being  true,  it  is  the  duty  of  the  court  to  follow  the  course  which 
the  law  favors.  In  section  1390,  3  Pom.  Eq.  Jur.,  the  question  is 
discussed  at  some  length,  and  it  is  there  said  that,  "as  between  a 
sale  and  a  partition,  however,  the  courts  will  favor  a  partition, 
as  not  disturbing  the  existing  form  of  the  inheritance."  See,  also, 
Mitchell  v.  Cline  (Cal.)  24  Pac.  164,  166.  A  partition  of  the  prop- 
erty will  therefore  be  ordered. 

Let  a  decree  be  drawn  in  accordance  with  the  views  expressed  in 
this  opinion. 


Section  2.    Forfeiture  by  Relocation. 

FEDERAL  STATUTE. 

Sec.  2324.  *  *  *  On  all  claims  located  prior  to  the  tenth  da^'  of  May, 
eighteen  hundred  and  seventy-two,  ten  dollars'  worth  of  labor  shall  be  per- 
formed or  improvements  made  by  the  tenth  day  of  June,  eighteen  hundred 
and  seventy-four,  and  each  year  thereafter,  for  each  one  hundred  feet  in 
length  along  the  vein  until  a  patent  has  been  issued  therefor;  but  where  such 
claims  are  held  in  common,  such  expenditure  may  be  made  upon  any  one 
claim ;  and  upon  a  failure  to  comply  with  these  conditions  the  claim  or  mine 
upon  which  such  failure  occurred  shall  be  open  to  relocation  in  the  same 
manner  as  if  no  location  of  the  same  had  ever  been  made,  provided  that  the 
original  locators,  their  heirs,  assigns,  or  legal  representatives,  have  not  re- 
sumed work  upon  the  claim  after  failure  and  before  such  location.  Rev.  St. 
U.  S.  §  2324. 


SHOSHONE  MIN.  CO  v.  RUTTER  et  al. 
1898.     Circuit  Court  of  Appeals.     31  C.  C.  A.  223,  87  Fed.  801. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  Division  of  the  District  of  Idaho. 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  Hawley,  District 
Judge. 

Hawley,  District  Judge. 2* — This  is  a  suit  in  equity  brought  under 
the  provisions  of  section  2326  of  the  Revised  Statutes  to  determine 
the  rights  of  the  respective  parties  to  certain  mining  ground  situated 
in  Yreka  mining  district,  Shoshone  county,  Idaho.  On  August  21, 
1895,  appellant  applied  for  a  patent  to  the  Shoshone  lode  claim. 
Appellees  thereafter  filed  their  protest  and  an  adverse  claim  against 
said  application,  and  in  due  time  commenced  this  suit  in  support  of 
their  claim  in  the  circuit  court  of  the  United  States  for  the  district 
of  Idaho.    *    *    * 

3.  This  brings  us  to  a  consideration  of  the  case  upon  its  merits.  It 
appears  from  the  record  that  appellees  first  located  a  claim  on  a 

"*  Part  only  of  the  majority  opinion  is  given  and  the  dissenting  opinion 
of  Gilbert,  Circuit  Judge,  is  omitted. 


FORFEITURE  BY  RELOCATION.  355 

portion  of  the  ground  in  dispute,  under  the  name  of  the  "Edith  Min- 
ing Claim,"  and  recorded  the  same ;  that  thereafter,  before  any  right 
of  the  appellant  was  made  to  the  ground,  the  locators  of  the  Kirby 
Fraction  mining  claim  made  a  location  "on  top  of  the  Edith,"  and 
also  included  more  ground.  These  locations  were  made  by  the  same 
parties.  The  Edith  was  located  June  lo,  1886,  embracing  1,200  feet 
on  the  lode;  the  Kirby,  on  July  11,  1886,  claiming  1,400  feet.  Jacob 
Johns,  one  of  the  locators,  testified  that  after  the  location  of  the 
Edith  he  found  more  ground,  "and  located  another  claim  right  over 
it.  It  was  all  our  property,  anyhow,  so  we  located  over  it, — right  over 
the  top  of  the  Edith.  The  location  of  the  Edith  was  completed  before 
the  Kirby  was  located.  *  *  *  j  intended  to  hold  both  the  Edith 
and  Kirby  locations."  In  the  conveyances  made  by  the  locators,  they 
mentioned  the  Edith  as  well  as  the  Kirby  claim.  Upon  these  facts 
appellant  contends  that,  if  the  Edith  location  was  valid,  the  Kirby 
location  is  void ;  that  the  appellees  cannot  recover  upon  the  Edith 
title,  because  they  have  not  set  up  any  title  to  that  claim  in  their 
bill ;  that  they  cannot  recover  upon  the  Kirby  title  without  showing 
an  abandonment  of  the  Edith  location.  In  considering  these  ques- 
tions it  must  be  remembered  that  the  Kirby  was  located  long  prior  to 
the  Shoshone  claim.  The  evidence  does  not  show  that  the  ground 
covered  by  the  Edith  location  was  intended  to  be  abandoned,  but  it 
does  show  that  the  original  locators  of  the  Edith  concluded  to  change 
the  boundaries  by  adding  more  ground,  and  gave  a  new  name  to 
their  claim.  The  locators  had  the  right  to  do  this,  as  long  as  they 
did  not  interfere  with  the  rights  of  other  parties.  The  fact  that  the 
Edith  was  mentioned  in  the  conveyances  does  not  prove  that  the 
parties  relied  upon  the  title  under  that  name.  A  conveyance  of  the 
ground  by  metes  and  bounds,  by  any  name  of  the  claim,  would  be 
valid  and  effective.  The  name  is  generally  used  to  designate  or 
identify  the  claim,  but  it  may  be  designated  or  identified  by  the  use  of 
one,  or*  more  than  one,  name,  if  it  is  known  or  called  by  different 
names.  There  is  no  statute,  law,  rule,  or  regulation  which  prevents 
locators  of  mining  claims  from  relocating  their  own  claim,  and  in- 
cluding additional  vacant  ground,  unclaimed  by  other  parties,  under 
a  different  name,  and  conveying  it  by  the  designation  of  the  last 
name.  In  Weill  v.  Mining  Co.,  11  Nev.  200,  210,  where  the  facts 
were  in  some  respects  similar  to  the  case  in  hand,  there  were  two 
locations  made  by  the  same  parties,  known,  respectively,  as  the 
"Boston"  and  the  "Lucerne."  The  Boston  was  located  prior,  and  the 
Lucerne  subsequent,  to  the  location  of  the  Waller's  Defeat,  owned  by 
the  plaintiff.  The  question  was  whether  the  defendant  obtained  any 
title  to  the  Boston  ground  under  a  deed  conveying  the  same  by  the 
name  of  the  "Lucerne  Company's  Claims."    The  court  said  : 

"If  the  Boston  notice  and  the  Lucerne  notice  were  posted  upon  and  claimed 
the  same  lode,  a  conveyance  of  his  interest  in  the  lode  necessarily  conveyed  his 


356  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

interest  in  both  locations,  and  it  was  immaterial  by  what  particular  name  he 
designated  it.     Phillpotts  v.  Blasdel,  8  Nev.  61." 

*      *      * 

The  decree  in  each  case  is  affirmed,  with  costs. ^^ 


WARNOCK  V.  DE  WITT. 
1895.     Supreme  Court  of  Utah,     ii  Utah  324,  40  Pac.  205. 

Action  by  Robert  Warnock  against  Reuben  De  Witt.  Judgment 
for  defendant,  and  plaintiff  appeals.    Affirmed. 

Smith,  J. — Without  going  into  a  statement  of  the  facts,  we  may 
say  that  the  record  presents  two  questions  for  our  determination  on 
this  appeal,  and  no  more.  They  are :  First.  Can  the  locator  of  a 
quartz  mining  claim,  who  has  allowed  his  location  to  lapse  by  a  fail- 
ure to  perform  the  necessary  work,  make  a  relocation,  or  new  loca- 
tion, covering  the  same  grovmd?  Second.  Does  the  evidence  show 
that  the  location  made  by  Miles  Durkee  on  January  i,  1887,  was 
sufficiently  marked  upon  the  ground  to  render  it  a  valid  location? 
Plaintiff  claims  under  a  location  made  January  17,  1887. 

The  first  question  arises  wholly  upon  the  construction  of  section 
2324,  Rev.  St.  U.  S.  This  section,  after  providing  that  a  certain 
amount  of  work  shall  be  performed  annually  upon  each  mining  loca- 
tion, provides :  "Upon  a  failure  to  comply  with  the  foregoing  condi- 
tions of  annual  expenditure  the  claim  or  mine  upon  which  such  fail- 
ure occurred,  shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made:  provided,  that  the 
original  locators,  their  heirs,  assigns,  or  legal  representatives,  have 
not  resumed  work  upon  the  claim  after  failure  and  before  such 
location." 

We  have  been  referred  to  no  decision  of  any  court  that  has  decided 
the  question  here  presented.  The  right  of  a  locator  to  make  a  new 
location  upon  mining  ground,  after  his  first  location  has  lapsed,  is 
recognized  in  the  case  of  Hunt  v.  Patchin,  35  Fed.  816 ;  and  in  Copp, 
U.  S.  Min.  Dec.  p.  300,  it  is  declared  that  a  prior  locator  has  such 
right.  See,  also,  15  Am.  &.  Eng.  Enc.  Law,  p.  551.  We  fail  to  see 
any  reason  why  such  right  should  be  denied.  The  fact  that  a  prior 
locator,  after  his  right  has  lapsed,  may  renew  it  by  resuming  work, 
would  appear  to  be  a  favor  or  right  granted  to  such  prior  locator, 
but,  to  give  the  proviso  above  quoted  the  effect  claimed  by  appellant, 
would  be  to  deny  to  such  prior  locator  a  substantial  right  allowed  to 

^  On  several  locations  of  one  claim  see  also  Bergquist  v.  West  Virginia- 
Wyoming  Co.,  ante,  p.  240. 


FORFEITURE  BY  RELOCATION.  357 

strangers.  In  other  words,  such  a  construction,  while  it  would  allow 
to  a  prior  locator  the  right  to  resume  work,  would  destroy  his  right 
to  make  a  new  location.  We  do  not  think  the  proviso  to  the  act 
should  be  construed  to  mean  anything  more  than  that  a  prior  locator, 
in  addition  to  the  rights  of  a  stranger,  should  also  have  the  right  to 
resume  work,  and  thus  relieve  himself  from  the  forfeiture  incurred. 
This  was  the  view  taken  by  the  court  below,  and  we  think  it  correct. 
The  second  question  is  largely  one  of  fact.  There  was  proof  tend- 
ing to  show  that  on  the  day  that  Durkee  made  his  location,  to  wit, 
January  i,  1887,  he  and  his  assistant,  in  addition  to  the  discovery 
monument,  on  which  was  placed  the  notice  of  location,  erected 
a  monument  or  stake  at  each  of  the  three  corners  of  the  claim,  and 
also  placed  a  monument  at  the  center  of  each  end  line.  At  the 
remaining  corner  no  stake  or  monument  was  placed  until  the  17th  of 
January,  1887,  being  the  day  on  which  plaintiff  made  the  location 
under  which  he  claims.  The  court  below  held  that  the  claim  was 
properly  located  and  marked.  So  far  as  there  was  a  conflict  in  the 
evidence,  we  cannot  disturb  the  finding  of  the  trial  court.  Its 
opportunities  for  coming  to  a  correct  conclusion  were  certainly  better 
than  ours.  Assuming,  therefore,  that  three  corners,  the  center  of 
two  end  lines,  and  the  point  of  discovery  were  appropriately  marked, 
the  question  arises,  is  such  marking,  of  necessity  and  as  matter  of 
law,  insufficient?  We  think  not.  The  statute  is:  "The  location 
must  be  distinctly  marked  on  the  ground  so  that  its  boundaries  can 
be  readily  traced."  Rev.  St.  U.  S.  §  2324.  It  will  be  observed  that 
the  statute  nowhere  requires  that  the  boundaries  be  marked.  The 
requirement  is  that  the  location  be  marked  so  the  boundaries  can  be 
traced.  We  think  that  where  the  notice  of  location  gives  the  length 
and  breadth  of  the  claim  from  the  discovery  monument,  and  three 
corners  are  properly  marked,  and  the  centers  of  both  end  lines  are 
also  properly  marked,  there  ought  to  be  no  difficulty  in  tracing  the 
entire 'boundary,  under  ordinary  circumstances.  At  any  rate,  there 
is  nothing  in  this  case  to  indicate  that  it  could  not  be  easily  traced, 
unless  it  be  inferred  from  the  fact  that  there  was  a  corner  post  miss- 
ing. We  are  of  the  opinion  that  the  court  below  properly  concluded 
that  the  claim  was  sufficiently  marked.  We  find  no  error  in  the 
record.  The  judgment  in  favor  of  defendant  and  the  order  denying 
a  new  trial  are  affirmed. ^*^ 

"**  For  a  criticism  of  this  case  see  Costigan,  Mining  Law,  327-330.    And  com- 
pare the  abandonment  case  of  McCann  v.  McMillan,  post,  p.  390. 


358  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

BELK  V.  MEAGHER. 

1881.     Supreme  Court  of  the  United  States. 
104  U.  S.  279,  26  L.  ed.  735. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. -^ 

This  is  an  action  of  ejectment  brought  by  Belk,  the  plaintiff  in 
error,  to  recover  the  possession  of  a  certain  alleged  quartz  lode 
mining  claim,  being,  as  is  stated  in  the  complaint,  ''a  relocation  of  a 
part  of  what  is  known  as  the  old  original  lode  claim."  Passing  by 
for  the  present  the  exceptions  taken  to  the  rulings  of  the  court  at 
the  trial  on  the  admission  and  rejection  of  testimony,  the  facts  affect- 
ing the  title  of  the  respective  parties  may  be  stated  as  follows : — 

In  July  or  August,  1864,  George  O.  Humphreys  and  William 
Allison  located  the  discovery  claim  on  the  original  lode  and  claims 
one  and  two  west  of  discovery.  These  locations  were  valid  and  sub- 
sisting on  the  loth  of  May,  1872,  and  no  claim  adverse  to  them  then 
existed.  No  work  was  done  on  them  between  that  date  and  June, 
1875.  During  the  month  of  June,  1875,  and  before  any  relocation 
had  been  made,  the  original  locators,  or  their  grantees,  resumed 
work  upon  the  claims,  and  did  enough  to  re-establish  their  original 
rights,  if  that  could  be  done  by  a  simple  resumption  of  work  at  that 
time.  No  work  was  afterwards  done  on  the  property  by  the  orig- 
inal locators,  or  any  one  claiming  under  them ;  and  it  does  not  appear 
that  they  were  in  the  actual  possession  of  the  claims,  or  any  part 
thereof,  on  the  19th  of  December,  1876,  or  for  a  long  time  before. 
It  is  conceded  by  both  parties  that  the  original  claims  lapsed  on  the 
1st  of  January,  1877,  because  of  a  failure  to  perform  the  annual  work 
required  by  the  act  of  Congress  in  such  cases. 

On  the  19th  of  December,  1876,  Belk  made  the  relocation  under 
which  he  now  claims,  and  did  all  that  was  necessary  to  perfect  his 
rights,  if  the  premises  were  at  that  time  open  for  that  purpose.  His 
entry  on  the  property  was  peaceable,  no  one  appearing  to  resist.  Be- 
tween the  date  of  his  entry  and  the  21st  of  February,  1877,  he  did 
a  small  amount  of  work  on  the  claim  which  did  not  occupy  more  than 
two  days  of  his  time,  and  probably  not  so  much  as  that,  and  he  had 
no  other  possession  of  the  property  than  such  as  arose  from  his  loca- 
tion of  the  claim  and  his  occasional  labor  upon  it.  On  the  21st  of 
February,  1877,  the  defendants  entered  on  the  property  peaceably 
and  made  another  relocation,  doing  all  that  was  required  to  perfect 
their  rights,  if  the  premises  were  at  the  time  open  to  them.  The 
possession  they  had  when  this  suit  was  begun  was  in  connection  with 
the  title  they  acquired  in  that  way. 

Upon  this  state  of  facts  the  questions  presented  in  argument  for 
our  consideration  are, — 

"  Paris  of  the  opinion  are  omitted. 


FORFEITURE  BY  RELOCATION.  359 

1.  Whether  the  work  done  in  June,  1875,  was  sufficient  to  give 
the  original  locators,  or  those  claiming  under  them,  an  exclusive 
right  to  the  possession  and  enjoyment  of  the  property  until  January 

2.  Whether,  if  it  was,  a  valid  relocation  of  the  premises,  good  as 
against  everybody  but  the  original  locators  or  their  grantees,  could 
be  made  by  Belk  on  the  19th  of  December,  1876,  his  entry  for  that 
purpose  being  peaceful  and  without  force. 

3.  Whether,  if  Belk's  relocation  was  invalid  when  made,  it  became 
effectual  in  law  on  the  ist  of  January,  1877,  when  the  original  claims 
lapsed;  and. 

4.  Whether,  even  if  the  relocation  of  Belk  was  invalid  the  de- 
fendants could,  after  the  ist  of  January,  1877,  make  a  relocation 
which  would  give  them  as  against  him  an  exclusive  right  to  the  pos- 
session and  enjoyment  of  the  property,  their  entry  for  that  purpose 
being  made  peaceably  and  without  force.    *    *    * 

The  argument  on  the  part  of  the  plaintiff  in  error  is  that,  if  no 
work  is  done  before  January,  1875,  all  rights  under  the  original 
claim  are  gone ;  but  that  is  not,  in  our  opinion,  the  fair  meaning  of 
the  language  which  Congress  has  employed  to  express  its  will.  As 
we  think,  the  exclusive  possessory  rights  of  the  original  locator  and 
his  assigns  were  continued,  without  any  work  at  all,  until  January 
I,  1875,  and  afterwards  if,  before  another  entered  on  his  possession 
and  relocated  the  claim,  he  resumed  work  to  the  extent  required  by 
the  law.  His  rights  after  resumption  were  precisely  what  they  would 
have  been  if  no  default  had  occurred.    *    *    * 

It  follows  that  on  the  19th  of  December,  1876,  the  owners  of  the 
original  location  had,  under  the  act  of  Congress,  the  exclusive  right 
to  the  possession  and  enjoyment  of  the  property  in  dispute. 

A  mining  claim  perfected  under  the  law  is  property  in  the  highest 
sense  of  that  term,  which  may  be  bought,  sold,  and  conveyed,  and 
will  pass  by  descent.  Forbes  v.  Gracey,  94  U.  S.  762.  There  is 
nothing  in  the  act  of  Congress  which  makes  actual  possession  any 
more  necessary  for  the  protection  of  the  title  acquired  to  such  a 
claim  by  a  valid  location,  than  it  is  for  any  other  grant  from  the 
United  States.  The  language  of  the  act  is  that  the  locators  "shall 
have  the  exclusive  right  of  possession  and  enjoyment  of  all  the 
surface  included  within  the  lines  of  their  locations,"  which  is  to  con- 
tinue until  there  shall  be  a  failure  to  do  the  requisite  amount  of 
work  within  the  prescribed  time.  Congress  has  seen  fit  to  make  the 
possession  of  that  part  of  the  public  lands  which  is  valuable  for 
minerals  separable  from  the  fee,  and  to  provide  for  the  existence  of 
an  exclusive  right  to  the  possession,  while  the  paramount  title  to 
the  land  remains  in  the  United  States.  In  furtherance  of  this  policy 
it  was  enacted  by  sect.  9  of  the  act  of  February  27,  1865,  c.  64 
(13  Stat.  441,  Rev.  Stat.,  sect.  910),  that  no  possessory  action 
between  individuals  in  the  courts  of  the  United  States  for  the  recov- 


360  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

ery  of  mining  titles  should  be  affected  by  the  fact  that  the  paramount 
title  to  the  land  was  in  the  United  States,  but  that  each  case  should 
be  adjudged  by  the  law  of  possession. 

Mining  claims  are  not  open  to  relocation  until  the  rights  of  a 
former  locator  have  come  to  an  end.  A  relocator  seeks  to  avail  him- 
self of  mineral  in  the  public  lands  which  another  has  discovered. 
This  he  cannot  do  until  the  discoverer  has  in  law  abandoned  his 
claim,  and  left  the  property  open  for  another  to  take  up.  The  right 
of  location  upon  the  mineral  lands  of  the  United  States  is  a  privilege 
granted  by  Congress,  but  it  can  only  be  exercised  within  the  limits 
prescribed  by  the  grant.  A  location  can  only  be  made  where  the 
law  allowed  it  to  be  done.  Any  attempt  to  go  beyond  that  will  be 
of  no  avail.  Hence  a  relocation  on  lands  actually  covered  at  the  time 
by  another  valid  and  subsisting  location  is  void ;  and  this  not  only 
against  the  prior  locator,  but  all  the  world,  because  the  law  allows  no 
such  thing  to  be  done.  It  follows  that  the  relocation  of  Belk  was 
invalid  at  the  time  it  was  made,  and  continued  to  be  so  until  January 
I,  1877. 

The  next  inquiry  is,  whether  the  attempted  location  in  December 
became  operative  on  the  ist  of  January,  so  as  to  give  Belk  the 
exclusive  right  to  the  possession  and  enjoyment  of  the  claim  after 
that.  We  think  it  did  not.  The  right  to  the  possession  comes  only 
from  a  valid  location.  Consequently,  if  there  is  no  location  there 
can  be  no  possession  under  it.  Location  does  not  necessarily  follow 
from  possession,  but  possession  from  location.  A  location  is  not 
made  by  taking  possession  alone,  but  by  working  on  the  ground, 
recording  and  doing  whatever  else  is  required  for  that  purpose  by 
the  acts  of  Congress  and  the  local  laws  and  regulations.  As  in  this 
case,  all  these  things  were  done  when  the  law  did  not  allow  it ;  they 
are  as  if  they  had  never  been  done.  On  the  19th  of  December  the 
right  to  the  possession  of  this  property  was  just  as  much  withdrawn 
from  the  public  domain  as  the  fee  is  by  a  valid  grant  from  the  United 
States  under  the  authority  of  law,  or  the  possession  by  a  valid  and 
subsisting  homestead  or  pre-emption  entry.  As  the  United  States 
could  not  at  the  time  give  Belk  the  right  to  take  possession  of  the 
property  for  the  purpose  of  making  his  location,  because  there  was 
an  existing  outstanding  grant  of  the  exclusive  right  of  possession 
and  enjoyment,  it  would  seem  necessarily  to  follow  that  any  tortious 
entry  he  might  make  must  be  unavailing  for  the  purposes  of  a  valid 
location  of  a  claim  under  the  act  of  Congress.  A  location  to  be 
effectual  must  be  good  at  the  time  it  is  made.  When  perfected  it  has 
the  effect  of  a  grant  by  the  United  States  of  the  right  of  present 
and  exclusive  possession.  As  the  proceeding  to  locate  is  one  in 
which  the  United  States  is  not  directly  an  actor,  but  is  carried  on  by 
the  locator  alone,  so  that  he  may  take  what  the  United  States  has, 
through  an  act  of  Congress,  offered  to  give,  it  is  clear  that  there  can 
be  nothing  to  take  until  there  is  an  offer  to  "ive.    Here  Congress  has 


FORFEITURE  BY  RELOCATION.  361 

said  in  unmistakable  language  that  what  has  been  once  located  under 
the  law  shall  not  be  relocated  until  the  first  location  has  expired,  and 
it  is  difficult  to  see  why,  if  Belk  could  make  his  relocation  on  the  19th 
of  December,  he  might  not  on  the  19th  of  January  before.  Lansdale 
V.  Daniels,  loo  U.  S.  113,  116.  The  original  locators  and  their 
grantees  had  precisely  the  same  rights  after  each  date,  the  only 
difference  being  in  duration.  To  hold  that,  before  the  former  loca- 
tion has  expired,  an  entry  may  be  made  and  the  several  acts  done 
necessary  to  perfect  a  relocation,  will  be  to  encourage  unseemly  con- 
tests about  the  possession  of  the  public  mineral-bearing  lands  which 
would  almost  necessarily  be  followed  by  breaches  of  the  peace. 

This  brings  us  to  the  inquiry  whether  the  possession  of  Belk,  after 
the  I  St  of  January,  was  such  as  to  prevent  the  defendants  from 
making  a  valid  relocation  and  acquiring  title  under  it.  The  position 
taken  in  his  behalf  is,  that  even  if  the  original  locators,  or  their 
grantees,  had,  under  the  act  of  Congress,  a  right  to  the  possession 
of  their  claim  until  January  i,  a  statute  of  limitations  in  Montana 
would  bar  their  action  against  him  for  its  recovery,  because  they 
had  not  been  in  actual  possession  within  a  year  previous  to  his  entry, 
and  consequently  his  entry,  though  tortious  as  to  them,  was  good 
as  the  beginning  of  an  adverse  possession,  which,  if  continued  for 
a  year,  would  entitle  him  to  a  patent  under  the  provisions  of  sect. 
2332  of  the  Revised  Statutes.    *    *    ''' 

No  one  contends  that  the  defendants  effected  their  entry  and 
secvired  their  relocation  by  force.  They  knew  what  Belk  had  done 
and  what  he  was  doing.  He  had  no  right  to  the  possession,  and  was 
only  on  the  land  at  intervals.  There  was  no  enclosure,  and  he  had 
made  no  improvements.  He  apparently  exercised  no  other  acts  of 
ownership,  after  January  i,  than  every  explorer  of  the  mineral  lands 
of  the  United  States  does  when  he  goes  on  them  and  uses  his  pick 
to  search  for  and  examine  lodes  and  veins.  As  his  attempted  reloca- 
tion was  invalid,  his  rights  were  no  more  than  those  of  a  simple 
explorer.  In  two  months  he  had  done,  as  he  himself  says,  "no  hard 
work  on  the  claim,"  and  he  "probably  put  two  days'  work  on  the 
ground."  This  was  the  extent  of  his  possession.  He  was  not  an 
original  discoverer,  but  he  sought  to  avail  himself  of  what  others 
had  found.  Relying  on  what  he  had  done  in  December,  he  did  not 
do  what  was  necessary  to  effect  a  valid  relocation  after  January  i. 
His  possession  might  have  been  such  as  would  have  enabled  him  to 
bring  an  action  of  trespass  against  one  who  entered  without  any 
color  of  right,  but  it  was  not  enough,  as  we  think,  to  prevent  an  entry 
peaceably  and  in  good  faith  for  the  purpose  of  securing  a  right  under 
the  act  of  Congress  to  the  exclusive  possession  and  enjoyment  of  the 
property.  The  defendants  having  got  into  possession  and  perfected 
a  relocation,  have  secured  the  better  right.  'When  this  suit  was 
begun  they  had  not  only  possession,  but  a  right  granted  by  the 
United  States  to  continue  their  possession  against  all  adverse  claim- 


362  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

ants.    The  possession  by  Belk  was  that  of  a  mere  intruder,  while  that 
of  the  defendants  was  accompanied  by  color  of  title.    *    *    * 

Upon  a  careful  consideration  of  the  whole  case  we  find  no  error. 

Judgment  affirmed. 


LAVAGNINO  v.  UHLIG. 

1905.     Supreme  Court  of  the  United  States. 
198  U.  S.  443,  49  L.  ed.  1 1 19,  25  Sup.  Ct.  716. 

In  error  to  the  Supreme  Court  of  the  State  of  Utah  to  review  a 
judgment  which  affirmed  a  judgment  of  a  District  Court  in  and  for 
the  County  of  Salt  Lake,  in  that  state,  in  favor  of  defendants  in  an 
action  to  try  title  to  conflicting  mining  claims.    Affirmed. 

Statement  by  Mr.  Justice  White  : 

Uhlig  and  McKernan,  two  of  the  defendants  in  error,  by  locations 
alleged  to  have  been  made  on  January  i,  1889,  asserted  ownership  of 
two  adjacent  mining  lode  claims,  designated  respectively  as  the 
Uhlig  No.  I  and  the  Uhlig  No.  2,  situated  in  the  West  mountain 
mining  district,  in  Salt  Lake  county,  state  of  Utah.  In  the  month 
of  August,  1898,  the  parties  named  filed  in  the  proper  land  office 
an  application  for  patent  for  said  claims.  During  the  publication  of 
notice  of  the  filing  of  the  application,  Giovanni  Lavagnino,  plaintifl: 
in  error, — as  the  alleged  owner  of  a  mining  lode  claim  called  the 
Yes  You  Do, — filed  an  adverse  claim  to  a  portion  of  the  land  em- 
braced in  each  of  the  Uhlig  locations,  which  it  was  asserted  over- 
lapped the  Yes  You  Do.  Thereupon,  pursuant  to  the  requirements 
of  §  2326  of  the  Revised  Statutes  (U.  S.  Comp.  Stat.  1901,  p.  1430), 
this  action  was  brought  in  a  district  court  of  Salt  Lake  county,  Utah, 
to  determine  in  whom  was  vested  the  title  and  right  of  possession 
to  the  conflicting  areas,  which,  in  the  case  of  the  Uhlig  No.  i,  claim, 
amounted  to  6.374  acres  and  in  the  No.  2  to  1.441  acres. 

In  substance,  Lavagnino  alleged  in  his  complaint  that,  at  the  time 
of  the  location  of  the  UhUg  claims,  there  was  a  subsisting  valid  loca- 
tion known  as  the  Levi  P.  lode  claim,  which  included  within  its  areas 
the  land  in  dispute  in  the  action ;  that  the  necessary  labor  required  by 
the  statutes  of  the  United  States  was  performed  upon  the  claim  up 
to  and  including  the  year  1896;  that  no  actual  labor  or  improvements 
were  made  upon  the  claim  for  the  year  1897,  'i^<^'  ^"  consequence,  all 
the  land  included  within  the  Levi  P.  location  became  forfeited,  and 
acquired  the  status  of  unoccupied  and  mineral  lands  of  the  United 
States,  and  that  while  such  was  the  status  of  the  land,  on  January  i, 
1898,  one  J.  Fewson  Smith,  Jr., — the  grantor  of  Lavagnino, — re- 


FORFEITURE  BY  RELOCATIOX.  363 

located  the  Levi  P.  claim  as  the  Yes  You  Do,  and  that  thereafter  all 
the  requirements  necessary  to  be  done  had  been  performed,  and  the 
Yes  You  Do  was  then  a  valid  and  subsisting  location. 

Subsequently  the  St.  Joe  Mining  Company  was  substituted  in  the 
stead  of  Uhlig,  as  a  party  defendant. 

On  the  trial  it  was  shown  that  at  the  time  Smith  located  the  Yes 
You  Do  claim  he  was  a  deputy  mineral  surveyor  for  the  district  in 
which  such  mining  claim  was  situated,  and  that  he  made  the  survey 
and  plat  for  the  protest  which  had  been  filed  in  the  land  office  against 
the  Uhlig  application  for  patent.  On  the  offer,  as  evidence  for  the^ 
plaintiff',  of  the  notice  of  location  of  the  Yes  You  Do  claim  and  the 
deed  from  Smith  to  Lavagnino,  objection  was  made  to  their  ad- 
mission, and  the  offered  evidence  was  excluded  upon  the  ground  that 
the  asserted  location  by  Smith  of  the  Yes  You  Do  was  not  valid, 
because,  at  the  time  of  the  making  thereof,  Smith  was  a  deputy  min- 
eral surveyor,  and  was  prohibited  by  the  terms  of  §  452  of  the 
Revised  Statutes  of  the  United  States  (U.  S.  Comp.  Stat.  1901,  p. 
257),  from  making  the  location  of  a  mining  lode  claim.  For  the 
same  reason  the  trial  court  sustained  an  objection  to  evidence  offered 
on  behalf  of  the  plaintiff  tending  to  show  that,  at  the  time  the  Uhlig 
claims  were  located,  the  ground  covered  by  such  locations  was  then 
covered  by  prior  locations  made  at  an  earlier  hour  on  the  same  day, 
and  was  consequently  not  subject  to  location  as  unoccupied  mineral 
lands  of  the  United  States.  That  one  of  said  locations — the  Levi  P. 
— embraced  the  premises  in  dispute,  and  was  a  subsisting  location 
until  forfeited  by  failure  to  perform  the  annual  work  for  the  year 
1897;  that  the  relocation  of  said  claim  as  the  Yes  You  Do  was  made 
on  January  I.  1898;  and  that  the  annual  work  and  other  steps 
required  by  law  to  be  done  in  connection  with  the  claim  had  been 
performed. 

Following  the  introduction  of  testimony  tending  to  show  the 
validity'  of  the  Uhlig  locations,  testimony  was  introduced  on  behalf 
of  the  plaintiff  in  respect  to  the  location  and  working  of  the  Levi  P. 
claim ;  but,  on  the  offer  of  the  Levi  P.  location  notice,  the  trial  court 
sustained  an  objection  thereto,  and  ruled  that,  as  the  Yes  You  Do 
was  not  a  valid  location,  there  were  no  adverse  claims  before  the 
court,  and  as  a  result  it  was  to  be  conclusively  presumed  that  there 
did  not  exist  any  location  which  in  anywise  conflicted  with  the  Uhlig 
claims  sought  to  be  patented. 

The  court  m.ade  findings  of  fact,  in  which,  infer  alia,  it  was 
recited  that  the  plaintiff  at  the  trial  had  not  introduced  any  legal  or 
competent  evidence  to  sustain  the  issues  on  his  part,  and  conse- 
quently that  "upon  the  trial,  on  motion  of  counsel  for  defendants,  the 
said  action  of  the  plaintiff  against  the  defendant  was,  and  is  hereby, 
dismissed."  The  facts  were  then  found  in  respect  to  the  location 
and  working  of  the  Uhlig  claims,  and,  as  conclusions  of  law,  the  court 
held   that  the  action   against   the   defendants   should   be   dismissed 


364  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

with  costs,  and  that  the  defendant  the  St.  Joe  Mining  Company,  and 
the  defendant  Alexander  McKernan,  were  entitled  to  purchase  from 
the  United  States  of  America  the  said  Uhlig  claims  and  the  whole 
thereof,  and  were  also  entitled  to  a  decree  quieting  their  title  to  the 
premises  in  dispute.  From  a  decree  entered  in  conformity  to  these 
conclusions  an  appeal  was  prosecuted  to  the  supreme  court  of  Utah, 
and  that  court  affirmed  the  decree.  26  Utah,  i,  99  Am,  St.  Rep.  808, 
71  Pac.  1046.  A  writ  of  error  was  thereupon  sued  out  from  this 
court. 

Mr.  Justice  White,  after  making  the  foregoing  statement,  deliv- 
ered the  opinion  of  the  court  :-* 

The  supreme  court  of  Utah  was  of  the  opinion  that,  by  force  of 
§  452  of  the  Revised  Statutes  of  the  United  States  (copied  in  the 
margin-^3),  j_  Fewson  Smith,  Jr.,  being  a  deputy  mineral  susveyor, 
was  disqualified  from  locating  the  Yes  You  Do  claim ;  that  in  con- 
sequence the  attempted  location  of  such  claim  was  void ;  and  that 
the  plaintiff,  Lavagnino,  acquired  no  rights  by  the  conveyance  of 
the  claim  to  him  by  Smith.  It  was  next  decided  that,  as  the  plaintiff 
had  failed  to  show  any  right  to  the  disputed  premises,  he  became  a 
stranger  to  the  title,  and  was  without  right  to  contest  the  claim  of 
the  defendant.  The  correctness  of  the  decree  entered  by  the  trial 
court  was  also  held  to  result  from  the  terms  of  §  2332  of  the  Revised 
Statutes  of  the  United  States  (U.  S.  Comp.  Stat.  1901,  p.  1433,  and 
§  2859  of  the  Revised  Statutes  of  Utah,  both  of  which  sections  are 
copied  in  the  margin. 

Adopting  the  finding  of  the  trial  court  that  the  Uhlig  claims  were 
valid  locations,  attention  was  called  to  the  fact  that  those  claims  were 
located  on  January  i,  1889,  while  the  Yes  You  Do  was  located  more 
than  eight  years  thereafter;  zn::.,  on  January  i,  1898.  A  mining 
claim  was  declared  to  be  a  possessory  right  and  real  estate  under  the 
statutes  of  Utah,  and  it  was  held  that  one  Mayberry,  the  locator  of 
the  Levi  P.  claim,  not  having  instituted  a  suit  to  recover  possession 
of  the  premises  in  dispute  within  seven  years  after  the  location  of 
the  Uhlig  claims,  was  barred  of  all  right  to  such  premises  by  the 
terms  of  §  2859  of  the  Revised  Statutes  of  Utah,  and  that  his  right 
to  contest  the  title  of  the  defendants  to  the  conflict  areas  "was  also 
waived  by  his  failure  to  adverse  the  application  for  a  patent  of  the 
Uhlig  Nos.  I  and  2."  The  court  added :  "In  view  of  these  facts  the 
plaintiff,  even  if  J.  Fewson -Smith,  Jr.,  had  not  been  a  deputy  United 
States  mineral  surveyor,  as  the  location  of  the  'Yes  You  Do"  was  not 
made  until  eight  years  after  the  possession  of  the  Uhlig  Nos.  i  and 

'*  Part  of  the  opinion  is  omitted. 

"''a  "The  officers,  clerks,  and  employees  in  the  General  Land  Office  are  pro- 
hibited from  directly  or  indirectly  purchasing  or  becoming  interested  in  the 
purchase  of  any  of  the  public  land  ;  and  any  person  who  violates  this  section 
shall  forthwith  be  removed  from  his  office."    Rev.  St.  U.  S.,  §  452. 


FORFEITURE  BY  RELOCATION.  365 

2  was  begun,  could  not  avail  himself  of  any  rights  which  the  said 
Mayberry  may  have  had." 

This  latter  ruling  of  the  supreme  court  of  Utah  forms  the  basis 
for  the  first  of  two  grounds  of  a  motion  to  dismiss  this  writ  of  error, 
which  motion  will  now  be  passed  upon.  '■'  *  *  The  motion  to 
dismiss  is,  therefore,  overruled. 

The  question  then  is.  Did  the  supreme  court  of  Utah  err  in  affirm- 
ing the  decree  of  the  trial  court  ? 

As  we  have  seen,  the  supreme  court  of  Utah,  in  part,  rested  its 
conclusion  upon  the  want  of  power  in  a  deputy  mineral  surveyor  to 
make  the  location  in  question,  in  consequence  of  the  prohibition 
contained  in  §  452  of  the  Revised  Statutes.  A  consideration  of  that 
subject,  however,  will  be  unnecessary  if  it  be  found  that  even  if  a 
deputy  mineral  surveyor  was  not  within  the  restriction  of  the  section 
referred  to,  nevertheless,  the  rights  asserted  under  the  Yes  You  Do 
location  in  the  adverse  proceeding  were  not  paramount  to  the  rights 
arising  from  the  Uhlig  location.  We,  therefore,  come  at  once  to  a 
consideration  of  that  question,  and,  of  course,  in  doing  so  assume,  for 
argument  sake,  that  the  section  of  the  Revised  Statutes  relied  upon 
and  the  rules  and  regulations  of  the  Land  Department  did  not  pro- 
hibit a  deputy  mineral  surveyor  from  making  a  location  of  mineral 
land.  And,  moreover,  in  considering  the  question  which  we  propose 
to  examine,  we  concede,  for  the  sake  of  argument,  that  the  Levi 
P.  location,  of  which  the  Yes  You  Do  purported  to  be  a  relocation, 
was  prior  in  date  to  the  location  of  the  Uhlig  Nos.  i  and  2,  and  that 
there  were  areas  in  conflict  between  them.  With  all  these  con- 
cessions in  mind,  the  question  yet  remains  whether  Smith  and  his 
transferee,  in  virtue  of  the  location  of  the  Yes  You  Do,  stood  in  such 
a  relation  as  to  enable  them,  or  either  of  them,  to  successfully  ad- 
verse the  application  for  patent  made  by  the  owners  and  possessors 
of  the  Uhlig  locations. 

It  is  undoubted  that  this  court  in  a  number  of  cases  has  declared 
that  the  rights  of  a  subsisting  senior  locator  of  mineral  land  are 
paramount  to  those  of  the  owner  of  a  junior  location,  so  far  as  said 
junior  location  conflicts  in  whole  or  in  part  with  the  prior  location. 
Clipper  Min.  Co.  v.  Eli  Min.  &  Land  Co.  194  U.  S.  220,  226,  48 
L.  ed.  944,  949,  24  Sup.  Ct.  Rep.  632,  and  cases  cited.  It  is  ele- 
mentary, also,  that  the  power  conferred  by  §  2324  of  the  Revised 
Statutes,  to  relocate  a  forfeited  mining  claim,  does  not  place  the 
locator  in  privity  of  title  with  the  owner  of  the  prior  and  forfeited 
location.  The  statute  merely  provides  that  when  a  forfeiture  has 
been  occasioned,  "the  claim  or  mine  upon  which  such  failure  oc- 
curred shall  be  open  to  relocation  in  the  same  manner  as  if  no  loca- 
tion of  the  same  had  ever  been  made,  provided  that  the  original 
locators,  their  heirs,  assigns,  or  legal  representatives,  have  not  re- 
sumed work  upon  the  claim  after  failure  and  before  such  location." 

The  question  then  is,  where  there  w^as  a  conflict  of  boundaries 


366  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

between  a  senior  and  junior  location,  and  the  senior  location  has  been 
forfeited,  has  the  person  who  made  the  relocation  of  such  forfeited 
claim  the  right,  in  adverse  proceedings,  to  assail  the  title  of  the 
junior  locator  in  respect  to  the  conflict  area  which  had  previously 
existed  between  that  location  and  the  abandoned  or  forfeited  claim? 

To  say  that  the  relocator  had  such  right  involves,  necessarily, 
deciding  that,  as  to  the  area  in  conflict  between  the  junior  and  the 
senior  locations,  the  junior  could  acquire  no  present  or  eventful  right 
whatever,  and  that,  on  the  abandonment  or  forfeiture  of  the  senior 
claim,  the  area  in  conflict  became,  without  qualification,  a  part  of  the 
public  domain.  In  other  words,  the  proposition  must  come  to  this : 
that  as  the  junior  locator  had  acquired  no  right  whatever,  present  or 
possible,  by  his  prior  location,  as  to  the  conflicting  area,  he  would 
be  obliged,  in  order  to  obtain  a  patent  for  such  area,  to  initiate  in 
respect  thereto  a  new  right,  accompanied  with  a  performance  of 
those  acts  which  the  statute  renders  necessary  to  make  a  location  of 
a  mining  claim. 

The  deductions  just  stated  are  essential  to  sustain  the  right  of  the 
relocator  of  a  forfeited  mining  claim  to  contest  a  location  existing 
at  the  time  of  the  relocation,  on  the  ground  that  such  existing  loca- 
tion embraced  an  area  which  was  included  in  the  forfeited  and 
alleged  senior  location,  for  the  following  reasons :  If  the  land  in 
dispute  between  the  two  locations,  which  antedated  the  relocation, 
did  not,  on  the  forfeiture  of  the  senior  of  the  two  locations,  become 
unqualifiedly  a  part  of  the  public  domain,  then  the  right  of  the  junior 
of  the  two  would  be  operative  upon  the  area  in  conflict  on  a  for- 
feiture of  the  senior  location.  If  it  had  that  effect  it  necessarily  was 
prior  and  paramount  to  the  right  acquired  by  a  relocation  of  the 
forfeited  claim. 

But  we  do  not  think  that  the  deductions  which  we  have  said  are 
essential  to  sustain  the  right  of  the  relocator  to  adverse,  under  the 
circumstances  stated,  can  be  sustained  consistently  with  the  legisla- 
tion of  Congress  in  relation  to  mining  claims.  Indeed,  we  think 
such  a  construction  would  abrogate  the  provisions  of  §  2326  of  the 
Revised  Statutes,  which  is  as  follows : 

"Sec.  2326.  Where  an  adverse  claim  is  filed  during  the  period  of 
publication,  it  shall  be  upon  oath  of  the  person  or  persons  making  the 
same,  and  shall  show  the  nature,  boundaries,  and  extent  of  such  ad- 
verse claim,  and  all  proceedings,  except  the  publication  of  notice  and 
making  and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the 
controversy  shall  have  been  settled  or  decided  by  a  court  of  compe- 
tent jurisdiction,  or  the  adverse  claim  waived.  It  shall  be  the  duty 
of  the  adverse  claimant,  within  thirty  days  after  filing  his  claim,  to 
commence  proceedings  in  a  court  of  competent  jurisdiction,  to  deter- 
mine the  question  of  the  right  of  possession  and  prosecute  the  same 
with  reasonable  diligence  to  final  judgment;  and  a  failure  so  to  do 
shall  be  a  waiver  of  his  adverse  claim.     After  such  judgment  shall 


FORFEITURE  BY  RELOCATION.  367 

have  been  rendered,  the  party  entitled  to  the  possession  of  the  claim, 
or  any  portion  thereof,  may,  without  giving  further  notice,  file  a 
certified  copy  of  the  judgment  roll  with  the  register  of  the  land  ofiice, 
together  with  the  certificate  of  the  surveyor  general  that  the  requisite 
amount  of  labor  has  been  expended  or  improvements  made  thereon, 
and  the  description  required  in  other  cases,  and  shall  pay  to  the 
receiver  five  dollars  per  acre  for  his  claim,  together  with  the  proper 
fees,  whereupon  the  whole  proceedings  and  the  judgment  roll  shall 
be  certified  by  the  register  to  the  Commissioner  of  the  General 
Land  Office,  and  a  patent  shall  issue  thereon  for  the  claim,  or  such 
portion  thereof  as  the  applicant  shall  appear,  from  the  decision  of  the 
court,  to  rightly  possess.  If  it  appears  from  the  decision  of  the  court 
that  several  parties  are  entitled  to  separate  and  different  portions 
of  the  claim,  each  party  may  pay  for  his  portion  of  the  claim,  with 
the  proper  fees,  and  file  the  certificate  and  description  by  the  sur- 
veyor general,  whereon  the  register  shall  certify  the  proceedings  and 
judgment  roll  to  the  Commissioner  of  the  General  Land  Office,  as 
in  the  preceding  case,  and  patents  shall  issue  to  the  several  parties 
according  to  their  respective  rights.  Nothing  herein  contained  shall 
be  construed  to  prevent  the  alienation  of  the  title  conveyed  by  a 
patent  for  a  mining  claim  to  any  person  whatever." 

This  section  plainly  recognizes  that  one  who,  pursuant  to  other 
provisions  of  the  Revised  Statutes,  has  initiated  a  right  to  a  mining 
claim,  has  recorded  his  location  notice,  and  performed  the  other  acts 
made  necessary  to  entitle  to  a  patent,  and  who  makes  application  for 
the  patent,  publishing  the  statutory  notice,  will  be  entitled  to  a 
patent  for  the  land  embraced  in  the  location  notice,  unless  adverse 
rights  are  set  up  in  the  mode  provided  in  the  section.  Thus  clearly 
providing  that  if  there  be  a  senior  locator  possessed  of  paramount 
rights  in  the  mineral  lands  for  which  a  patent  is  sought,  he  may 
abandon  such  rights  and  cause  them  in  effect  to  inure  to  the  benefit 
of  the  applicant  for  a  patent  by  failure  to  adverse,  or,  after  adversing, 
by  failure  to  prosecute  such  adverse. 

It  cannot  be  denied  that  under  §  2326,  if,  before  abandonment  or 
forfeiture  of  the  Levi  P.  claim,  the  OAvners  of  the  Uhlig  locations  had 
applied  for  a  patent,  and  the  ovvmers  of  the  Levi  P.  had  not  adversed 
the  application,  upon  an  establishment  of  a  prima  facie  right  in  the 
owners  of  the  Uhlig  claims,  an  indisputable  presumption  would  have 
arisen  that  no  conflict  claims  existed  to  the  premises  described  in  the 
location  notice.  Gwillini  v.  Domiellan,  115  U.  S.  45,  51,  29  L.  ed. 
348,  350,  5  Sup.  Ct.  Rep.  mo.  And  the  same  result  would  have 
arisen  had  the  owner  of  the  Levi  P.  adversed  the  application  for  a 
patent  based  upon  the  Uhlig  locations,  and  failed  to  prosecute,  and 
waived  such  adverse  claim. 

In  both  of  the  supposed  instances  the  necessary  consequence  would 
have  been  to  conclusively  determine  in  favor  of  the  applicant,  so  far 
as  the  rights  of  third  persons  were  concerned,  that  the  land  was  not 


368  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

unoccupied  public  land  of  the  United  States,  but,  on  the  contrary, 
as  to  such  persons,  from  the  time  of  the  location  by  the  applicant  for 
the  patent,  was  land  embraced  within  such  location,  and  not  sub- 
ject to  be  acquired  by  another  person.  And  this  result,  flowing  from 
the  failure  of  the  owner  of  a  subsisting  senior  location  to  adverse 
an  application  for  patent  by  the  owner  of  an  opposing  location,  or 
his  waiver,  if  an  adverse  claim  is  made,  must,  as  the  greater  includes 
the  lesser,  also  arise  from  the  forfeiture  of  the  claim  of  the  senior 
locator  before  an  application  for  patent  is  made  by  the  conflicting 
locator,  and  the  consequent  impossibility  of  the  senior  locator  to 
successfully  adverse  after  the  forfeiture  is  complete. 

Of  course  the  effect  of  the  construction  which  we  have  thus  given 
to  §  2326  of  the  Revised  Statutes  is  to  cause  the  provisions  of  that 
section  to  qualify  §§  2319  and  2324  (U.  S.  Comp.  Stat.  1901,  pp. 
14^4,  1426),  thereby  preventing  mineral  lands  of  the  United  States 
which  have  been  the  subject  of  conflicting  locations  from  becoming, 
quoad  the  claims  of  third  parties,  unoccupied  mineral  lands  by  the 
mere  forfeiture  of  one  of  such  locations. 

In  text  books  (Barringer  &  A.  Mines  &  Mining,  p.  306;  Lindley, 
Mines,  2d  ed.  pp.  650,  651),  statements  are  found  which  seemingly 
indicate  that,  in  the  opinion  of  the  writers,  on  the  forfeiture  of  a 
senior  mining  location,  quoad  a  junior  and  conflicting  location,  the 
area  of  conflict  becomes,  in  an  unqualified  sense,  unoccupied  mineral 
lands  of  the  United  States,  without  inuring  in  any  way  to  the  benefit 
of  the  junior  location.  But,  in  the  treatises  referred  to,  no  account  is 
taken  of  the  effect  of  the  express  provisions  of  Rev.  Stat.  §  2326. 
Moreover,  when  the  cases  to  which  the  text  writers  referred,  as 
sustaining  the  statements  made,  are  examined,  it  will  be  seen 
that  theywere  decided  either  before  the  passage  of  the  adverse  claim 
of  statutes  of  1872,  or  concerned  controversies  between  the  senior 
and  junior  locators,  or  depended  upon  the  provisions  of  state  statutes. 
How  far  such  statutes  would  be  controlling,  we  are  not  called  upon 
to  say,  as  it  is  not  claimed  that  there  is  any  statute  in  Utah  in  any 
w^ay  modifying  the  express  provisions  of  §  2326. 

As  the  issue  raised  by  the  complaint  in  this  action  concerned  only 
the  conflict  areas,  and,  on  the  trial,  the  invalidity  of  the  Uhlig  loca- 
tions, in  respect  to  the  premises  in  dispute,  was  attempted  to  be 
established  solely  by  proof  that  the  Levi  P.  was  an  antecedent  loca- 
tion, and  embraced  the  grounds  in  conflict,  it  follows,  from  the 
opinion  which  we  have  expressed,  that,  at  the  time  when  Smith 
located  the  Yes  You  Do  claim  as  a  relocation  of  the  Levi  P.  claim, 
the  land  embraced  within  the  location  notices  of  the  Uhlig  claims, 
and  upon  which  the  Yes  You  Do  overlapped,  was  not  unoccupied 
mineral  lands  of  the  United  States,  and  was  consequently  not  subject 
to  be  relocated  by  Smith,  even  under  the  mere  hypothesis  which  we 
have  indulged  in,  that,  as  a  deputy  mineral  surveyor,  he  was  not 
debarred  from  making  the  location.     For  this  reason  the  judgment 


FORFEITURE  BY  RELOCATION.  369 

of  the  Supreme  Court  of  Utah  was  right,  and  it  must  therefore  be 
aifirmed. 

Mr.  Justice  Brewer  concurs  in  the  result. 

Mr.  Justice  McKenna  dissents. 


OSCAMP  V.  CRYSTAL  RIVER  MIN.  CO. 
1893.     Circuit  Court  of  Appeals.     7  C.  C.  A.  233,  58  Fed.  293. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Colorado. 

At  Law.  Action  of  ejectment  brought  by  Alfred  Oscamp  against 
the  Crystal  River  Mining  Company.  Verdict  and  judgment  for 
defendant.    Plaintifit"  brings  error.    Reversed. 

Before  Caldwell  and  Sanborn,  Circuit  Judges,  and  Thayer, 
District  Judge. 

Thayer,  District  Judge.-'' — The  question  presented  by  this  record 
appears  to  be  one  of  first  impression,  and  arises  out  of  the  following 
facts :  The  plaintiff  in  error  is  the  owner  of  an  undivided  one-third 
part  of  the  Excelsior  No.  i  lode  mining  claim,  hereafter  called  the 
"Excelsior  Claim,"  situated  in  the  Elk  Mountain  mining  district, 
Gunnison  county,  Colo.  The  defendant  in  error  is  the  owner  of  the 
Black  Queen  lode  mining  claim,  hereafter  termed  the  "Black 
Queen,''' which  is  situated  in  the  same  district,  county,  and  state. 
Of  these  claims  the  Excelsior  is  founded  upon  the  earlier  location. 
Both  claims  are  rectangular  in  shape,  and,  as  originally  laid  upon 
the  surface  of  the  earth,  the  north  side  line  of  the  Black  Queen  runs 
diagonally  across  the  southwest  corner  of  the  Excelsior  claim,  and 
cuts  ofif  from  the  latter  claim  a  small,  triangular  piece  of  ground 
having  an  area,  as  it  is  said,  of  about  three-quarters  of  an  acre.  _  A 
suit  was  brought  by  the  plaintiff  in  error  on  July  7.  1890,  against 
the  defendant  in  error  in  the  circuit  court  for  the  district  of  Colo- 
rado, to  recover  the  triangular  parcel  of  land  aforesaid,  on  the 
ground  that  the  owners  of  the  Excelsior  claim  had  the  superior  title 
thereto  by  reason  of  their  older  location,  and  that  they  had  been 
wrongfully  ousted  from  the  possession  thereof  by  the  defendant^  in 
error.  On  the  trial  in  the  circuit  court  it  appeared  from  an  admission 
made  by  counsel  for  the  plaintifif  that  after  the  Excelsior  claim  ^yas 
located  the  requisite  amount  of  development  work  under  section 
2324  of  the  Revised   Statutes  of  the  United  States    (to  wit,  $100 

^  Part  of  the  opinion  is  omitted. 
24 — Mining  Law 


370  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

worth  of  work  per  year,  the  claim  having  been  located  after  May  lo, 
1872)  was  done  during  each  of  the  years  1882  and  1883,  that  no 
work  was  done  on  the  claim  during  the  year  1884,  but  that  the 
owners  re-entered  and  resumed  development  work  in  1885.  When 
this  admission  was  made,  the  circuit  court  charged,  in  substance,  that 
the  failure  of  the  owners  of  the  Excelsior  claim  to  do  any  develop- 
ment work  thereon  during  the  year  1884  made  the  Black  Queen 
location  good  as  to  all  of  the  lands  within  its  side  lines  and  end 
lines,  including  the  triangular  piece  heretofore  mentioned,  notwith- 
standing the  fact  that  the  owners  of  the  Excelsior  claim  had  origi- 
nally had  the  superior  title  to  the  triangle  in  question  by  virtue  of 
their  older  location.  The  theory  of  the  circuit  court  seems  to  have 
been  that,  as  the  owners  of  the  Black  Queen  continued  in  pos- 
session and  at  work  on  their  claim  during  and  after  the  year  1884, 
while  operations  on  the  Excelsior  claim  were  suspended,  and  that 
as  the  two  claims  conflicted  and  overlapped  in  the  manner  before 
indicated,  the  failure  of  the  owners  of  the  excelsior  claim  to  do 
any  work  during  the  year  1884  was  an  abandonment  of  their  su- 
perior right  to  the  space  where  the  claims  overlapped,  and  that  as 
to  such  territory  the  title  of  the  Black  Queen  became  paramount 
without  any  affirmative  action  on  the  part  of  its  owners,  from  and 
after  January  i,  1885,  and  that  the  relative  status  was  not  altered 
when  the  Excelsior  claimants  resumed  work  during  that  year.  The 
soundness  of  that  view  is  challenged  by  the  plaintiff  in  error,  and 
the  action  of  the  circuit  court  in  enforcing  it  in  its  charge  is  the 
error  that  we  have  to  review\ 

In  Belk  v.  Meagher,  104  U.  S.  279,  283,  it  \vas  held,  after  much 
consideration,  that  a  mining  location,  when  perfected  according  to 
the  statutes  of  the  United  States  and  local  laws  and  regulations, 
"is  property  in  the  highest  sense  of  that  term,  which  may  be  bought, 
sold,  and  conveyed,  and  will  pass  by  descent,"  and  that  there  is  noth- 
ing in  the  law  under  which  such  property  is  acquired  "which  makes 
actual  possession  any  more  necessary  for  the  protection  of  the 
title  acquired  to  such  a  claim  by  a  valid  location  than  it  is  for 
the  protection  of  any  other  grant  from  the  United  States."  It  was 
furthermore  held  in  that  case  that  a  failure  to  do  the  requisite 
amount  of  annual  development  work  on  a  claim  under  section  2324 
of  the  Revised  Statutes  of  the  United  States  simply  renders  the 
claim  subject  to  relocation  by  third  parties,  after  the  lapse  of  the 
year,  and  not  before,  and  that  such  right  of  relocation  is  itself  lost, 
and  the  original  owner  is  restored  to  all  of  his  rights,  if  he  enters 
without  force,  and  resumes  work,  before  a  relocation  is  perfected  by 
any  third  party. 

It  should  be  further  observed  that  the  laws  of  the  state  of  Col- 
orado contain  provisions  relative  to  the  relocation  in  whole  or  in 
part  of  abandoned  lodes,  and  also  as  to  the  making  and  filing  of 
amended  location  certificates  under  certain  circumstances.     These 


FORFEITURE  BY  RELOCATION.  37^ 

several  provisions  of  the  Colorado  statutes  (Alills'  Ann.  St.)  are  as 
follows : 

"Sec.  3162.  The  relocation  of  abandoned  lode  claims  shall  be  by  sinking  a 
new  discovery  shaft  and  fixing  new  boundaries  in  the  same  manner  as  if 
it  were  the  location  of  a  new  claim;  or  the  relocator  may  sink  the  original 
discovery  shaft  ten  feet  deeper  than  it  was  at  the  time  of  abandonment,  and 
erect  new,  or  adopt  the  old  boundaries,  renewing  the  posts  if  removed  or  de- 
stroyed. In  either  case  a  new  location  stake  shall  be  erected.  In  any  case 
whether  the  whole  or  part  of  an  abandoned  claim  is  taken,  the  location  cer- 
tificate may  state  that  the  whole  or  any  part  of  the  new  location  is  located 
as  abandoned  property." 

"Sec.  3160.  If  at  any  time  the  locator  of  any  minmg  claim  heretofore  or 
hereafter  located,  or  his  assigns,  shall  apprehend  that  his  original  certificate 
was  defective,  erroneous,  or  that  the  requirements  of  the  law  had  not  been 
complied  with  before  filing,  or  shall  be  desirous  of  changing  his  surface 
boundaries,  or  of  taking  in  any  part  of  an  overlapping  claim  which  has  been 
abandoned,  or  in  case  the  original  certificate  was  made  prior  to  the  passage 
of  this  law  and  he  shall  be  desirous  of  securing  the  benefits  of  this  act,  such 
locator  or  his  assigns  may  file  an  additional  certificate  subject  to  the  pro- 
visions of  this  act.     *     *     * " 

In  view  of  the  rights  that  are  thus  acquired  under  the  laws  of  the 
United  States  by  the  owner  of  a  mining  claim  who  has  made  a  valid 
location,  and  in  view  of  the  foregoing  provisions  of  the  Colorado 
statutes,  we  are  constrained  to  hold  that  the  owners  of  the  Black 
Queen  did  not  acquire  a  superior  right  to  the  triangular  parcel  of 
land  which  is  the  subject  of  controversy,  merely  because  the  owners 
of  the  Excelsior  claim  failed  to  do  the  requisite  amount  of  develop- 
ment work  during  the  year  1884,  they  having  resumed  work  in  the 
vear  1885  prior  to  the  alleged  ouster.  We  are  unable  to  see  upon 
what  principle  the  failure  to  do  such  work  operated  to  extinguish 
the  title  of  the  owners  of  the  Excelsior  claim,  and  to  transfer  it  to 
the  owners  of  the  Black  Queen.  In  the  early  days  of  mining,  be- 
fore the, adoption  of  any  laws  on  the  subject  of  mining  locations, 
there  may  have  been  such  a  thing  as  a  title  to  a  mining  claim  that 
was  so  entirely  dependent  upon  possession  that  it  ceased  to  exist 
when  actual  possession  of  the  claim  ceased ;  but  at  the  present  time 
the  title  to  a  well-located  mining  claim  is  not  of  that  precarious 
character,  for  the  reason  that  it  is  not  exclusively  dependent  upon 
possession,  but  rests  upon  a  statutory  grant.  As  was  said  in  Belk 
V.  Meagher,  supra,  actual  possession  is  no  more  necessary  to  protect 
the  title  to  a  mining  claim  than  it  is  to  protect  the  title  to  property 
acquired  under  any  other  grant  from  the  United  States.  The  neces- 
sary conclusion  seems  to  "be  that  neither  the  failure  of  the  owner 
to  occupy  or  to  work  his  claim  during  a  given  year  will  operate  to 
divest  him  of  his  title,  and  to  confer  it  upon  another.  A  failure  to 
work  a  claim  to  the  extent  required  by  the  statute  simply  entitles  a 
third  party  to  relocate  it  in  the  mode  pointed  out  by  existing  laws, 
and,  as  the  statutes  of  Colorado  prescribe  the  mode  in  which  third 


372  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

parties  may  divest  the  title  of  the  original  owner  by  a  relocation, 
if  the  statutes  in  that  respect  are  not  pursued,  the  status  of  all  per- 
sons remains  unaltered,  barring  the  possible  effect  of  limitations  or 
laches ;  and  if  at  any  time  the  original  owner  re-enters,  and  resumes 
work,  the  right  of  relocation  is  then  lost.    *    *    * 

For  the  error  in  the  charge  first  above  indicated  the  judgment  of 
the  circuit  court  is  hereby  reversed,  and  the  cause  is  remanded,  with 
directions  to  award  a  new  trial. 


BROWN  V.  GURNEY. 

SMALL  V.  BROWN. 

BROWN  V.  SMALL. 

1906.     Supreme  Court  of  the  United  States. 
201  U.  S.  184,  50  L.  ed.  717,  26  Sup.  Ct.  509. 

In  error  to  the  Supreme  Court  of  the  State  of  Colorado  to  review 
a  judgment  which,  reversing  the  judgments  of  the  District  Court  of 
Teller  County,  in  that  State,  held  that  the  south  end  of  a  lode 
mining  claim  reverted  to  the  public  domain  and  became  subject  to 
relocation  when  the  claimant  elected  to  retain  the  north  end  of  the 
the  claim,  after  patent  for  the  entire  claim  had  been  refused  and 
the  Land  Department  had  decided  a  contest  with  a  placer  claimant 
against  the  contention  of  a  known  vein  in  the  placer  conflict.  Af- 
firmed. 

Statement  by  Mr.  Chief  Justice  Fuller  : 

Brown  applied  for  patent  on  a  mining  claim,  known  as  the  Scor- 
pion, and  Gurney  adversed  this  application  as  the  owner  and  claim- 
ant of  the  Hobson's  Choice,  as  did  Small,  also,  as  the  owner  and 
claimant  of  the  P.  G.  claim.  Thereafter  each  brought  suit  in  support 
of  his  adverse  claim  in  the  district  court  of  Teller  county,  Colorado. 
The  cases  were  tried  together  on  an  agreed  statement  of  facts.  This 
showed  that  the  Scorpion,  Hobson's  Choice,  and  P.  G.  locations  cov- 
ered substantially  the  same  tract  of  ground,  and  were  all  made  in 
compliance  with  law,  with  the  exception  repeated  in  connection  with 
each  of  said  locations :  "Provided,  however,  that  it  is  not  admitted 
that  at  the  time  of  said  location  the  ground  embraced  in  said  location 
was  a  part  of  the  vacant  and  unappropriated  public  domain." 

It  appeared  that  prior  to  May  28,  1895,  a  mining  lode  location 
called  the  Kohnyo  was  owned  by  the  Cripple  Creek  Mining  Com- 
pany, which  claim  was  divided  into  two  non-contiguous  tracts  by  the 
Mt.  Rosa  placer  claim.  The  north  end  of  the  Kohnyo,  comprising 
500  feet  of  the  claim,  was  where  the  discovery  of  mineral  was  made, 


FORFEITURE  BY  RELOCATION,  2)7Z 

and  it  also  contained  a  discovery  shaft  and  the  other  workins^s  and 
improvements  of  the  claim.  The  south  end  being  700  feet  in  length, 
did  not  show  mineral,  and  was  without  development  work  of  any 
kind. 

The  following:  diagram  illustrates  the  situation : 


<X    A  /^^. 


The  local  land  office  permitted  the  claimant  of  the  Kohnyo  to 
enter  the  two  tracts  as  one  claim,  but  the  Department  ultimately  re- 
fused to  issue  a  patent  for  such  tracts,  basing  the  refusal  upon  the 
ground  that  two  portions  of  a  lode  mining  claim,  separated  by  a  pat- 
ented placer,  could  not  be  included  within  one  patent.  The  land  office 
gave  the  applicant,  however,  the  privilege  to  apply  for  a  patent  upon 
either  of  the  segregated  tracts,  and  directed  that,  in  default  of  an 
election  or  appeal  by  the  claimant  within  sixty  days  from  the  date 
of  the  order,  the  entry  of  that  portion  of  the  claim  lying  south  of  the 
Mt.  Rosa  claim  should  be  canceled  without  further  notice.  This  de- 
cision was  rendered  May  28,  1895,  and  no  appeal  was  taken  from  it; 
but  the  claimant  of  the  Kohnyo  instituted  proceedings  against  the 
claimant  of  the  Mt.  Rosa  placer,  the  purpose  of  which  was  to  secure 
title  to  the  vein  of  the  Kohnyo,  which,  it  was  claimed,  passed  through 
the  portion  of  the  placer  claim  which  conflicted  with  the  Kohnyo 
locatioij.  These  proceedings  were  prosecuted  before  the  Land  De- 
partment, with  the  result  that  on  May  7,  1898,  a  decision  was  ren- 
dered against  the  Kohnyo  claimant's  contention  of  a  known  vein  in 
the  placer  conflict. 

June  14,  1898,  the  claimant  of  the  Kohnyo  filed  in  the  land  office 
a  written  instrument,  dated  June  10,  by  which  it  elected  to  retain 
and  patent  the  north  end  of  the  Kohnyo  claim,  and  in  which  it  also 
waived  any  right  to  further  question  or  review  the  decision  of  the 
Secretary  of  the  Interior  of  May  7,  1898,  affirming  the  decision  of 
May  28,  1895. 

July  15,  1898,  the  Commissioner  of  the  General  Land  Office  can- 
celed the  entry  of  the  Kohnyo  claim  as  to  that  portion  south  of  the 
Mt.  Rosa  placer. 

May  13,  1898,  Brown  located  this  700  feet  as  the  Scorpion  lode 
claim.  June  23,  1898,  Gurney  located  the  same  premises  as  the  Hob- 
son's  Choice  lode  claim,  and  July  16,  1898,  Small  located  the  same 


374  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

ground  as  the  P.  G.  lode  claim.  July  15  and  16,  1898,  the  claimant 
of  the  Scorpion  filed  amended  and  second  amended  certificates. 

On  these  facts,  judgment  was  rendered  for  defendant  in  each 
case,  from  which  plaintiff's  appealed  to  the  supreme  court  of  the 
state.  That  court  reversed  the  judgment  in  Gnrney  v.  Brown,  and 
entered  judgment  that  Gurney  recover  the  premises  included  in  the 
Hobson's  Choice  location,  and  for  costs;  and  reversed  the  judgment 
in  Small  v.  Broivn,  and  entered  judgment  "that  neither  party  has  es- 
tablished any  right  to  the  premises  in  controversy,"  and  for  costs. 
The  opinion  is  reported  in  32  Colo.  472,  yy  Pac.  357. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court  :^° 

The  question  in  these  cases,  which  was  intended  to  be,  and  was 
passed  upon,  is  when,  in  respect  of  the  three  locations,  did  the  prem- 
ises in  controversy  become  subject  to  location?     *     *     * 

We  think  the  stipulation  and  exhibits  attached  containing  the  vari- 
ous proceedings  before  the  Commissioner  of  the  General  Land  Office 
and  the  Secretary  of  the  Interior  establish  the  validity  of  the  Kohnyo 
location.  According  to  that  record,  the  Kohnyo  claim  had  passed  to 
final  entry ;  this  entry  had  been  recognized  by  the  Commissioner  of 
the  General  Land  Office  and  the  Secretary;  the  question  litigated 
in  the  Land  Department  for  something  like  three  years,  as  to  the 
knowledge  of  the  placer  applicant  at  the  time  of  his  application  for 
patent  of  the  existence  of  the  Kohnyo  vein  in  the  placer  ground, 
had  been  decided  adversely  to  the  Kohnyo  claim ;  the  Kohnyo  claim- 
ant had  thereupon  accepted  this  decision,  acquiesced  therein,  and 
availed  himself  of  the  privilege  extended  by  the  Commissioner's  de- 
cision of  May  28,  1895,  and  elected  to  retain  the  northerly  tract  of 
the  Kohnyo  claim,  which  amounted  to  a  relinquishment  of  the  south- 
erly tract,  and  the  entry  as  to  that  tract  was  thereafter  formally 
canceled. 

It  may  be  added  also  that  in  adverse  proceedings  each  party  is 
practically  a  plaintiff  and  must  show  his  title.  Jackson  v.  Roby, 
109  U.  S.  440,  2"/  L.  ed.  990,  3  Sup.  Ct.  Rep.  301 ;  P  ere  go  v.  Dodge, 
163  U.  S.  160,  167,  41  L.  ed.  113,  118,  16  Sup.  Ct.  Rep.  971.  By  the 
act  of  Congress  of  March  3,  1881  (21  Stat,  at  L.  505,  chap.  140,  U.  S. 
Comp.  Stat.  1901,  p.  1431),  it  was  provided  that  if,  in  an  adverse 
suit,  "title  to  the  ground  in  controversy  shall  not  be  established  by 
either  party,  the  jury  shall  so  find,  and  judgment  shall  be  entered 
according  to  the  verdict."  Under  that  act  it  is  held  that  before  the 
applicant  for  a  patent  can  have  judgment,  he  must  prove  his  claim 
of  title  to  the  ground.  The  object  of  the  statute  was,  as  we  said  in 
Perego  v.  Dodge,  supra,  to  provide,  in  the  case  of  a  total  failure  of 
proof  of  title,  for  an  adjudication  "that  neither  party  was  entitled  to 
the  property,  so  that  the  applicant  could  not  go  forward  with  the 
proceedings  in  the  land  office  simply  because  the  adverse  claimant 

'"  Part  of  the  opinion  is  omitted. 


FORFEITURE  BY  RELOCATION.  375 

had  failed  to  make  out  his  case,  if  he  had  also  failed."  2  Lindley, 
Mines,  §  763,  and  cases  cited. 

Of  course  it  is  essential  that  at  the  date  of  a  location  the  ground 
located  on  should  be  part  of  the  pubHc  domain,  and  in  the  present 
case  the  specific  question  affirmatively  raised  was  whether  the  ground 
in  controversy  was  a  part  of  the  public  domain  at  the  time  of  the 
respective  contested  locations. 

It  seems  to  us  that  when  the  Scorpion  locator  attempted  to  make 
that  location  he  conceded  the  validity  of  the  Kohnyo  location  and  the 
segregation  by  that  location  from  the  public  domain  of  the  southerly 
portion  of  that  claim,  but  assumed  that  the  decision  of  the  Secretary 
of  May  7,  1898,  operated  to  restore  that  tract  to  the  public  domain 
as  of  that  date,  since  he  relocated  it  on  May  13,  and  on  the  following 
15th  of  July  filed  an  amended  location.  But  the  filing  of  the  latter 
certificate  did  not  cure  the  defect  arising  from  the  fact  that  the  dis- 
covery shaft  of  the  Scorpion  was  upon  ground  covered  by  the  Kohn- 
yo's  claim,  and  the  filing  of  the  amended  certificate  could  not  perfect 
the  Scorpion  location  in  view  of  the  previous  location  of  the  Hobson's 
Choice,  which  created  intervening  rights  in  favor  of  a  third  person. 

The  stipulation  of  facts  was  evidently  prepared  in  respect  of  the 
inquiry  concerning  the  date  at  which  the  ground  in  controversy  re- 
verted to  and  became  a  part  of  the  public  domain,  and  that  embraced 
the  question  whether  that  resulted  from  the  decision  of  the  Secretary 
of  May  7,  1898;  or  from  the  filing  by  the  Kohnyo  claimant  of  its 
election  to  retain  the  northerly  tract  and  relinquish  the  other,  June 
14,  1898;  or  upon  the  formal  cancelation  of  the  entry,  July  15,  1898. 

Nevertheless,  it  is  further  contended  that  the  proceedings  in  the 
Land  Department  between  May  28,  1895,  and  May  7,  1898,  did  not 
suspend  the  operation  of  the  decision  of  the  Commissioner  of  May 
28,  1895,  and  since  by  that  order  the  Kohnyo's  applicant  was  re- 
quired to  make  its  election  within  sixty  days  from  that  date,  as  to 
which  end  of  the  claim  it  would  retain  and  patent,  in  default  of  which 
election  the  entry  of  the  southerly  portion  became  canceled,  and  the 
Kohnyo's  claimant  did  not  make  such  election  until  June,  1898,  that 
the  entry  became  canceled  as  to  the  ground  in  controversy  at  the 
expiration  of  sixty  days  from  Mav  28,  1895.  and  thereupon  the  tract 
reverted  to  the  public  domain.  The  Land  Department  ruled  other- 
wise. It  treated  the  order  of  May  28,  1895,  as  suspended  during  the 
intermediate  period,  while  the  proceedings  as  to  the  knowledge  of 
the  placer  claimant  of  the  existence  of  the  Kohnyo  lode  were  pend- 
ing. Manifestly  because,  if  it  was  known  by  the  placer  applicant  at 
the  time  of  application  for  the  patent  that  the  Kohnyo  vein  extended 
through  the  placer  ground,  then  the  vein  did  not  pass  by  the  patent, 
and  the  Kohnyo's  claimant  might  be  entitled  to  patent  both  ends  of 
its  claims,  embracing  the  vein  and  a  strip  through  the  placer  location. 

And  when  on  July  15,  1898,  the  Department  canceled  the  Kohnyo 
entry  as  to  the  tract  in  controversy,  it  was  declared  that :    "In  view 


376  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

of  the  fact  that  no  motion  for  a  review  of  the  departmental  decision 
of  May  7,  1898,  affirming  the  decision  of  this  office  of  May  28,  1895, 
was  filed  within  the  time  prescribed  by  the  rules  of  practice,  the  de- 
cision last  mentioned  became  final,  and  it  now  devolves  upon  this 
office  to  execute  the  same." 

The  election,  then,  by  the  Kohnyo  claimant,  filed  in  the  land  office 
June  14,  1898,  was  an  abandonment  of  the  south  700  feet  of  the 
Kohnyo  claim,  which  took  effect  eo  instanti.  Lindley,  Mines,  §§  642- 
644;  Derry  v.  Ross,  5  Colo.  295,  300.  This  was  voluntarily  done, 
and  took  effect  notwithstanding  the  receiver's  receipt  had  not  been 
formally  canceled.  The  order  of  cancelation  of  July  15  simply  re- 
corded a  pre-existing  fact,  and  did  not  change  the  effect  of  the  pre- 
vious abandonment.  By  reason  of  that  abandonment,  the  southerly 
tract,  for  the  first  time,  reverted  to  and  became  a  part  of  the  public 
domain.  And  as  the  Hobson's  Choice  was  the  first  location  of  the 
ground  made  after  such  abandonment,  it  follows  that  it  was  valid, 
and  that  its  owner  was  entitled  to  a  decision  in  its  favor. 

We  again  state  the  dates  of  the  respective  locations.  The  Scorpion 
was  located  May  13,  1898.  The  Hobson's  Choice  was  located  June 
2T„  1898.  The  location  of  the  P.  G.  was  July  16.  Thus  it  is  seen  that 
the  Scorpion  was  attempted  to  be  located  at  a  time  when  the  premises 
were  not  subject  to  location;  that  the  Hobson's  Choice  was  located 
when  the  premises  had  reverted  to  the  public  domain ;  and  that  the 
location  of  the  P.  G.  was  after  that  date. 

We  have  accepted  the  rulings  of  the  Land  Department  that  the 
Kohnyo  location  covered  the  southerly  as  well  as  the  northerly  end 
of  that  claim.  Such  was  the  decision  of  May  28,  1895,  and  that  of 
the  Secretary  of  the  Interior  of  May  7,  1898,  and  the  formal  cancela- 
tion of  July  15,  1898.  In  this  separate  distinct  proceeding  counsel 
cannot  challenge  these  rulings.  The  attack  is  collateral  and  cannot 
be  entertained.  Steel  v.  St.  Louis  Smelting  &  Rcf.  Co.  106  U.  S. 
447,  27  L.  ed.  226,  I  Sup.  Ct.  Rep.  389 ;  St.  Louis  Smelting  Co.  v. 
Kemp,  104  U.  S.  636,  26  L.  ed.  875.  True,  those  decisions  refer  to 
instances  where  the  patent  had  issued,  but  the  principle  of  freedom 
from  collateral  attack  is  equally  applicable  where  final  entry  has  been 
made.  The  final  certificate  issued  by  the  receiver  after  the  submission 
of  final  proof  and  payment  of  the  purchase  price,  where  such  is  re- 
quired, has  been  repeatedly  held  to  be  for  many  purposes  the  equiva- 
lent of  a  patent.  We  are  advised  in  argument  that  the  patent  was 
issued,  but  it  is  objected  that  though  such  may  be  the  fact,  it  is  not 
so  stated  in  the  facts  agreed. 

The  cancelation  of  the  entry  of  the  700  feet  did  not  rest  on  any 
defect  in  the  original  location.  On  the  contrary,  the  Land  Depart- 
ment held  the  proceedings  sufficient  to  entitle  the  Kohnyo's  claimant 
to  proceed  to  patent  for  this  particular  tract  if  he  should  so  elect.  It 
was  only  when  the  Kohnyo  claimant  abandoned  that  tract  by  making 


FORFEITURE  BY  RELOCATION,  377 

his  election  that  he  waived  his  right  to  patent  it,  and  permitted  the 
receiver's  receipt  to  be  canceled  to  that  extent. 

That  cancelation  did  not  itself  operate  to  restore  the  southerly  tract 
to  the  public  domain,  which  had  already  taken  place  by  the  action  of 
the  Kohnyo  claimant  in  compliance  with  the  judgment  of  the  Land 
Department. 

We  concur  in  the  conclusions  of  the  Supreme  Court  of  Colorado, 
and  the  judgments  arc  affirmed. 


FARRELL  v.  LOCKHART. 

1908.     Supreme  Court  of  tfie  United  States. 
210  U.  S.  142,  28  Sup.  Ct.  681. 

In  error  to  the  Supreme  Court  of  the  State  of  Utah  to  review  a 
judgment  which  reversed  a  judgment  of  the  District  Court  for  Sum- 
mit County,  in  that  state,  in  favor  of  defendant  in  a  suit  in  support 
of  an  adverse  mining  claim.   Reversed. 

See  same  case  below,  31  Utah,  155,  86  Pac.  1077. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  White  delivered  the  opinion  of  the  court : 

In  the  month  of  February,  1905,  James  Farrell,  plaintiff  in  error, 
as  owner  of  the  Cliff  lode  mining  claim,  situated  in  the  Uintah  min- 
ing district,  Summit  county,  Utah,  made  application  in  the  United 
States  land  office  at  Salt  Lake  City  for  a  patent,  and  published  the 
notice  required  by  law.  The  defendant  in  error,  as  the  administrator 
of  the  estate  of  John  G.  Rhodin,  filed  an  adverse  claim  based  upon 
the  location  by  Rhodin  of  the  ground  as  the  Divide  lode  mining 
claim.  Thereafter,  pursuant  to  Rev.  Stat.  §  2326,  U.  S.  Comp.  Stat. 
1901,  p.  1430,  this  action  was  brought  in  a  court  of  the  state  of  Utah 
by  the  administrator  of  Rhodin,  in  support  of  said  adverse  claim. 

In  the  complaint  filed  by  the  administrator  the  right  of  Rhodin 
to  the  Divide  was  asserted  to  have  been  initiated  by  a  location  duly 
made  on  January  2,  1903.  Farrell' in  his  answer  asserted  a  paramount 
right  by  reason  of  his  ownership  of  the  Cliff  claim,  averring  that  it 
had  been  initiated  by  a  location  made  on  August  i,  1901,  seventeen 
months  prior  to  the  location  of  the  Divide  by  Rhodin.  To  the  affirma- 
tive matter  pleaded  in  the  answer  of  Farrell  a  general  denial  was 
interposed,  and  it  was  also  averred  as  follows :  Plaintiff  "alleges  that 
at  the  time  and  date  of  the  attempted  location  of  the  said  Cliff  pat- 
ented mining  claim  the  ground  therein  contained  was  not  any  part 
of  the  open  and  unclaimed  mineral  land  of  the  United  States,  but, 
on  the  contrary,  the  whole  thereof,  including  the  point  and  place  of 
discovery  of  said  alleged  Cliff  mining  claim,  was  then  embraced  and 
included  and  contained  in  a  valid  and  subsisting  mining  claim,  called 
the  South  Mountain,  then  and  there  the  property  and  in  the  posses- 


3/8  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

sion  of  the  predecessors  of  this  plaintiff's  intestate ;  and  for  the  rea- 
son that  the  discovery  of  said  alleged  Cliff  mining  claim  was  not 
placed  upon  unoccupied  and  unclaimed  land  of  the  United  States,  the 
alleged  location  based  thereon  became  absolutely  void." 

The  case  was  tried  by  the  court,  and  it  was  specifically  found  that 
the  Cliff",  the  Divide,  and  the  South  Mountain  Claims,  as  located, 
covered  substantially  the  same  ground,  and  that  the  place  of  discov- 
ery of  the  Cliff  was  within  the  boundaries  of  the  alleged  South 
Mountain  mining  claim.  It  was  further  specifically  found  by  the 
court  that,  upon  the  trial  of  the  action,  "plaintiff  offered  evidence 
(subject  to  the  objection  of  the  defendant  that  the  same  was  incom- 
petent, immaterial,  and  irrelevant,  and  that  no  adverse  claim  was 
filed  on  behalf  of  the  South  Mountain  lode  mining  claim)  tending 
to  show  that,  during  the  month  of  August,  1900,  the  ground  in  con- 
troversy herein  was  located  by  W.  I.  Snyder  and  Thomas  Roscamp, 
respectively,  citizens  of  the  United  States,  under  the  name  of  the 
South  ]\Iountain  lode  mining  claim.  That  a  discovery  of  a  vein  was 
made  and  notice  of  location  posted,  and  the  boundaries  of  said  claim 
marked  so  that  the  same  could  readily  be  traced,  and  that  said  notice 
was  in  due  form,  and  was  duly  recorded  in  the  office  of  the  county 
recorder  of  Summit  county,  state  of  Utah.  That  no  work  was  ever 
done  upon  said  South  Mountain  claim,  and  that  said  South  Moun- 
tain claim  lapsed  and  became  forfeited  for  want  of  work  done  there- 
on, on  December  31,  1901.  That  no  adverse  claim  was  filed  on  be- 
half of  said  South  Mountain  lode  against  the  application  for  patent 
for  said  Cliff  lode  mining  claim.  That  on  or  about  the  13th  day  of 
October,  1902,  said  Snyder  and  Roscamp  made  a  deed  purporting 
to  convev  said  alleged  South  IMountain  lode  mining  claim  to  said 
John  G.  Rhodin." 

When  it  decided  the  case,  the  court  found  that  Farrell  initiated  his 
ownership  of  the  Cliff  claim  on  August  i,  1901,  and  performed  all 
the  acts  required  by  law  in  addition  to  the  annual  labor  required  by 
statute,  and  that  Rhodin  initiated  on  January  2,  1903,  his  Divide 
claim.  The  court  decided  in  favor  of  the  defendant  Farrell,  and 
entered  a  decree  adjudging  that  he  was  the  owner,  in  possession  of 
the  premises  in  controversy,  and  entitled  to  the  possession,  except 
as  against  the  paramount  title  of  the  United  States.  The  court  treated 
the  proof  off'ered  on  behalf  of  the  plaintiff  as  to  the  location  of  the 
South  Mountain  claim  for  the  same  ground  embraced  in  the  Cliff, 
made  a  year  prior  to  the  location  of  the  latter  claim,  as  immaterial 
and  irrelevant.  Plaintiff  duly  excepted  and  appealed  to  the  supreme 
court  of  the  state.  The  court,  in  disposing  of  the  appeal,  considered 
solely  what  it  termed  the  "decisive  question"  presented  by  the  record, 
vis.,  "whether  the  appellant,  as  owner  of  the  Divide  claim,  who,  as 
such,  adversed  the  application  for  patent,  is  in  position  to  show  and 
assert  that,  at  the  time  of  the  location  of  the  Cliff  claim,  the  ground 
located  was  covered  by  the  South  Mountain,  a  then  valid  and  sub- 


FORFEITURE  BY  RELOCATION.  3/9 

sisting  claim ;  that  the  discovery  point  of  the  Cliff  was  within  the 
boundaries  of  the  South  Mountain ;  and  that,  therefore,  the  locator 
of  the  Cliff  did  not  discover  a  vein  or  lode  on,  or  make  a  valid  loca- 
tion of,  unappropriated  and  unoccupied  mineral  lands  of  the  United 
States,  and  because  thereof  his  location  is  and  was  void,  not  only 
against  the  locators  of  the  South  Mountain,  but  all  the  world."  In 
deciding  this  question  the  court  deemed  that  it  was  called  upon  to 
consider  and  apply  the  ruling  in  Lavagnino  v.  Uhlig,  198  U.  S.  443, 
49  L.  ed.  1119,  25  Sup.  Ct.  Rep.  716.  Doing  so  it  was  recognized 
that  the  reasoning  in  the  opinion  in  that  case  was  broad  enough  to 
maintain  where,  on  an  adverse  claim,  the  first  or  senior  locator  did 
not  appear  to  oppose  the  application  for  a  patent  made  by  a  second 
locator,  w^hose  rights  in  the  same  ground  had  been  initiated  prior  to 
the  forfeiture  of  the  senior  location,  for  failure  to  perform  the  annual 
labor  required  by  the  statute,  a  third  locator  could  not  be  heard  to 
complain  that  the  second  locator  had  initiated  his  claim  upon  min- 
ing ground  which  was  not  at  the  time  open  to  location.  While  thus 
conceding,  the  count  considered  that  the  reasoning  in  question  ought 
to  be  restricted,  because  not  to  do  so  would  cause  Lavagnino  v.  Uhlig 
to  be  in  conflict  with  cases  decided  prior  to  the  decision  in  that  case, 
and,  moreover,  would  establish  a  rule  in  conflict  with  the  practice 
which  had  long  prevailed  in  the  mining  districts,  and  would  there- 
fore create  great  confusion  and  uncertainty  in  respect  of  mining 
claims,  and  rmsettle  rights  of  property  of  great  value.  The  court 
did  not  at  all  doubt  that  Lavagnino  v.  Uhlig  had  been  correctly  de- 
cided in  view  of  the  issues  in  that  case ;  but,  for  the  reasons  which 
we  have  just  stated,  it  held  that  the  ruling  in  Lavagnino  v.  Uhlig 
must  be  considered  as  narrowed,  so  as  to  apply  only  to  a  case  where 
the  second  location  did  not  embrace  the  discovery  point  of  the  first, 
but  was  a  mere  overlap.  Thus  applying  the  ruling  in  Lavagnino  v. 
Uhlig,  the  court  held  that,  as  the  location  by  Farrell  of  the  Cliff 
claim  \\"as  made  upon  substantially  the  same  ground  embraced  by  the 
South  Alountain,  and  the  statutory  period  for  the  forfeiture  of  the 
South  Mountain  claim  had  not  expired,  the  Cliff  claim  was  not  lo- 
cated on  ground  subject  to  location,  and  was  void ;  that,  as  the  Divide 
had  been  located  or  relocated  after  the  lapsing  of  the  South  Moun- 
tain claim,  the  Divide  claim  was  located  on  land  subject  to  be  ap- 
propriated, and  was  therefore  paramount  to  the  second  or  Farrell 
location.  The  judgment  of  the  trial  court  was  therefore  reversed  and 
a  decree  was  made  in  favor  of  the  administrator  of  Rhodin.  31  Utah 
155,  86  Pac.  1077.   Farrell  thereupon  sued  out  this  writ  of  error. 

In  the  argument  at  bar  our  attention  has  been  directed  to  several 
decisions  of  the  highest  courts  in  some  of  the  mining  states  or  in 
territories  of  the  United  States  where  mining  prevails, — Nash  v. 
McNamara  (Nev.)  93  Pac.  405,  and  cases  cited, — which,  in  con- 
sidering the  reasoning  of  Lavagnino  v.  Uhlig,  also  attributed  to  that 
reasoning,  broadly  construed,  the  serious  and  unfavorable  conse- 


380  LABOR,    IMPROVEMENTS    AND    ABANDONMENT, 

quences  on  rights  of  property  suggested  by  the  court  below  in  its 
opinion.  It  may  not  be  doubted,  unless  the  reasoning  of  the  Lavagni- 
no  Case  is  to  be  restricted  or  qualified,  that  the  grounds  upon  which 
the  court  below  rested  its  conclusions  were  erroneous.  Not  doubting 
at  all  the  correctness  of  the  decision  in  the  Lavagnino  Case,  espe- 
cially in  view  of  the  issue  as  to  long  possession  and  the  operation  of 
the  bar  of  the  statute  of  the  state  of  Utah,  which  was  applied  by  the 
court  below  in  that  case,  and  whose  judgment  was  affirmed,  we  do 
not  pause  to  particularly  re-examine  the  reasoning  expressed  in  the 
opinion  in  Lavagnino  v.  Uhlig  as  an  original  proposition.  We  say 
this,  because,  whatever  may  be  the  inherent  cogency  of  that  reason- 
ing, in  view  of  the  experience  of  the  courts  referred  to  concerning 
the  practice  which  it  was  declared  had  prevailed,  in  reliance  upon 
what  was  deemed  to  be  the  result  of  previous  decisions  of  this  court, 
and  the  effect  on  vested  rights  which  it  was  said  would  arise  from  a 
change  of  such  practice,  and  taking  into  view  the  prior  decisions  re- 
ferred to,  especially  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  ed.  735, 
as  also  the  more  recent  case  of  Brown  v.  Gurney,  201  U.  S.  184,  50 
L.  ed.  717,  26  Sup.  Ct.  Rep.  509,  we  think  the  opinion  in  the  Lavagni- 
no Case  should  be  qualified  so  as  not  to  exclude  the  right  of  a  sub- 
sequent locator  on  an  adverse  claim  to  test  the  lawfulness  of  a  prior 
location  of  the  same  mining  ground  upon  the  contention  that,  at  the 
time  such  prior  location  was  made,  the  ground  embraced  therein  was 
covered  by  a  valid  and  subsisting  mining  claim.  It  is  to  be  observed 
that  this  qualification  but  permits  a  third  locator  to  offer  proof  tend- 
ing to  establish  the  existence  of  a  valid  and  subsisting  location  an- 
terior to  that  of  the  location  which  is  being  adversed.  It  does  not, 
therefore,  include  the  conception  that  the  mere  fact  that  a  senior 
location  had  been  made,  and  that  the  statutory  period  for  perform- 
ing the  annual  labor  had  not  expired  when  the  second  location  was 
made,  would  conclusively  establish  that  the  location  was  a  vahd  and 
subsisting  location,  preventing  the  initiation  of  rights  in  the  ground 
by  another  claimant,  if,  at  the  time  of  such  second  location,  there  had 
been  an  actual  abandonment  of  the  original  senior  location.  We  say 
this  because — taking  into  view  Belk  v.  Meagher,  Lavagnino  v.  Uhlig, 
and  Brown  v.  Gurney — we  are  of  the  opinion,  and  so  hold,  that 
ground  embraced  in  a  mining  location  may  become  a  part  of  the 
public  domain  so  as  to  be  subject  to  another  location  before  the  ex- 
piration of  the  statutory  period  for  performing  annual  labor,  if,  at 
the  time  when  the  second  location  was  made,  there  had  been  an  actual 
abandonment  of  the  claim  by  the  first  locator. 

In  Black  v.  Elkhorn  Min.  Co.  163  U.  S.  445,  41  L.  ed.  221,  16  Sup. 
Ct.  Rep.  iioi,  summing  up  as  to  the  character  of  the  right  which  is 
granted  by  the  United  States  to  a  mining  locator,  after  observing  that 
no  written  instrument  is  necessary  to  create  the  right,  and  that  it 
may  be  forfeited  by  the  failure  of  the  locator  to  do  the  necessary 
amount  of  work,  it  was  said  (p.  450)  : 


FORFEITURE  BY  RELOCATION.  381 

"(3)  His  interest  in  the  claim  may  also  be  forfeited  by  his  aban- 
donment, with  an  intention  to  renounce  his  right  of  possession.  It 
cannot  be  doubted  that  an  actual  abandonment  of  possession  by  a  lo- 
cator of  a  mining  claim,  such  as  would  work  an  abandonment  of  any 
other  easement,  would  terminate  all  the  right  of  possession  which  the 
locator  then  had. 

"An  easement  in  real  estate  may  be  abandoned  without  any  writing 
to  that  effect,  and  by  any  act  evincing  an  intention  to  give  up  and 
renounce  the  same.  Snell  v.  Levitt,  no  N.  Y.  595,  i  L.  R.  A.  414, 
18  N.  E.  370,  and  cases  cited  at  p.  603  of  opinion  of  Earl,  J. ;  White 
V.  Manhattan  R.  Co.  139  N.  Y.  19,  34  N.  E.  887.  If  the  locator  re- 
mained in  possession  and  failed  to  do  the  work  provided  for  by  stat- 
ute, his  interest  would  terminate,  and  it  appears  to  be  equally  plain 
that,  if  he  actually  abandoned  the  possession,  giving  up  all  claim  to 
it,  and  left  the  land,  that  all  the  right  provided  by  the  statute  would 
terminate  under  such  circumstances." 

It  remains  only  to  test  the  correctness  of  the  conclusions  of  the 
court  below  in  the  light  of  the  principles  just  announced.  Now,  it 
was  found  by  the  trial  court  that  the  evidence  offered  tended  to  show 
that  the  South  Mountain  lode  claim  was  located  in  August,  1900, 
and  that  no  zvork  was  ever  done  on  said  claim,  and  that  it  became 
forfeited  for  want  of  the  annual  labor  required  by  the  statute  on  De- 
cember 31,  1901.  Farrell  made  his  location  in  August,  1901,  a  year 
after  the  South  Mountain  was  located  and  five  months  before  the 
expiration  of  the  period  when  a  statutory  forfeiture  of  the  South 
]\Iountain  would  have  resulted.  The  oft'er  of  proof,  therefore,  made 
by  the  administrator  of  Rhodin,  to  show  that  the  South  Ivlountain 
was  a  valid  and  subsisting  location  when  Farrell  made  the  location 
of  the  Cliff,  tended  to  show  that  during  the  year  that  had  intervened 
between  the  location  of  the  South  Mountain  and  the  location  by 
Farrell  of  the  Cliff,  no  work  of  an}^  character  whatever  was  done  by 
the  locators  of  the  South  Mountain,  and  that  this  was  also  true  from 
the  time  the  Cliff"  was  located  to  the  expiration  of  the  period  when 
a  statutory  forfeiture  would  have  been  occasioned.  As  all  rights  of 
the  locators  of  the  South  Mountain  were,  in  any  aspect,  at  an  end  by 
their  failure  to  adverse,  and  as  the  Cliff  was  prior  in  time  to  the 
Divide,  and  therefore  the  burden  of  proof  was  on  the  Divide  to  es- 
tablish that  the  Cliff  location  was  not  a  valid  one,  we  think  that  the 
burden  would  not  have  been  sustained  by  the  proof  offered.  To  the 
contrary,  we  are  of  opinion  that  the  proof  which  was  so  offered  on 
behalf  of  the  Divide  tended,  when  unexplained,  to  show  that  the 
location  of  the  South  Mountain  was  not  made  in  good  faith,  and 
that  the  claim  had  actually  been  abandoned  when  Farrell  made  his 
location.  The  supreme  court  of  Utah  should  therefore  have  remanded 
the  cause,  so  that  it  might  be  determined  whether  or  not  the  South 
]\Iountain  had  been  abandoned  by  the  locators  of  that  claim  when 
Farrell  made  his  location  ;  and  error  was  therefore  committed  in  en- 


382  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

taring  judgment  in  favor  of  Lockhart,  the  administrator  of  Rhodin, 
decreeing  to  him  possession  of  the  ground  in  controversy. 

The  judgment  of  the  Supreme  Court  of  Utah  must  therefore  be 
reversed  and  the  cause  remanded  for  further  proceedings  in  con- 
formity with  this  opinion. 

Reversed  and  remanded. ^^ 


BRAT^ILETT  v.  FLICK. 

(See  ante,  p.  228,  for  a  report  of  the  case.) 

STREET  ET  AL.  v.  DELTA  MINING  CO. 

1910.     Supreme  Court  of  Montana.     42  Mont.  371,  112  Pac.  701. 

Brantly,  C.  J.^- — This  action  was  brought  by  appellants  in  aid  of 
an  adverse  claim  filed  by  them  in  the  United  'States  land  office  at 
Helena,  against  an  application  for  patent  by  respondent  to  mining 
ground  situated  in  Colorado  unorganized  mining  district  of  Jefferson 
county.  The  respondent  applied  for  patent  to  a  contiguous  group  of 
six  locations,  designated  as  the  Wickes,  Mammoth,  Covelite,  Song- 
bird, Ruby,  and  Daisy  lodes.  The  adverse  claim  is  based  on  a  loca- 
tion designated  as  the  June  Bug.  The  latter  was  located  on  June  4, 
1902.  It  is  so  situated  with  reference  to  the  respondent's  locations 
that  it  conflicts  with  all  of  them.  ''■-  =■=  *  At  the  trial,  the  main 
contention  made  by  respondent  was  that  the  June  Bug  location  was 
void  ab  initio,  because  the  discovery  upon  which  it  was  made  w^as 
within  the  boundaries  of  another  location,  then  valid  and  subsisting, 
designated  as  the  Rolf.  This  latter  location  was  made  by  Huer  on 
October  24,  1901.  Most  of  the  area  covered  by  it  is  now  covered  by 
the  Covelite,  Ruby,  and  Daisy,  and  also  by  the  June  Bug.  The  dis- 
covery of  the  latter  was  within  the  exterior  boundaries  of  the  Rolf. 
No  representation  work  was  done  upon  this  claim  in  1902,  or  after- 
wards. The  subjoined  plat  shows  the  relative  situation  of  the  Wickes, 
Rolf,  and  June  Bug  at  the  time  the  location  of  the  last  was  made. 
Upon  the  evidence  adduced,  the  court  found  in  favor  of  the  respond- 
ent and  directed  judgment  to  be  entered  accordingly.  From  it,  and 
an  order  denying  a  new  trial,  plaintiffs  have  appealed.  Many  ques- 
tions are  argued  in  the  briefs  of  counsel,  but  the  only  ones  vvhich  it 
is  necessary  to  decide  are,  whether  the  evidence  is  sufficient  to  jus- 
tify the  findings  as  to  the  validity  of  the  Rolf  location,  and  whether 

^^  For  a  criticism  of  this  case,  see  an  article  on  "The  Doctrine  of  Farrell  v. 
Lockhart  and  Its  Relation  to  Other  Rules  Applicable  to  the  Location  of  Min- 
ing Claims"  in  11  Columbia  Law  Review  593,  723. 

"  Parts  of  the  opinion  are  omitted. 


FORFEITURE  BY  RELOCATION. 


383 


the  court  erred  in  its  conclusion  that  the  June  Bug  location  was  void 
ab  initio.     *     *     * 


^ 


'%\ 


-^ 


The  court  found  specially  that  on  June  4,  1902,  the  Rolf  was  a 
valid,  subsisting  location,  and  that  Huer  had  not  then  abandoned  it 
nor  expressed  or  evinced  any  intention  to  do  so.  The  question, 
whether' the  June  Bug  location  was  void  in  its  inception,  because  the 
discovery  upon  which  it  was  based  was  within  the  exterior  boun- 
daries of  the  Rolf,  turns  upon  the  proper  answer  to  the  inquiry,  Did 
the  subsequent  abandonment  or  forfeiture  of  the  latter  inure  to  the 
benefit  of  the  former?  Appellants  contend  that  it  did  and  rely  with 
confidence  upon  the  decision  of  this  court  in  the  case  of  Helena  Gold 
&  Iron  Co.  V.  Baggaley,  34  Alont.  465,  87  Pac.  455,  in  which,  it  is 
said,  this  court  adopted  the  rule  announced  in  the  case  of  Lavagnino 
V.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

In  the  Baggaley  Case,  the  court  was  considering  the  question 
whether  the  posting  of  an  initial  location  notice  effected  an  absolute 
withdrawal  from  exploration  of  the  whole  area  within  a  circle  de- 
scribed by  swinging  about  the  point  of  discovery  as  a  center,  the 
longest  distance  claimed  from  the  point  of  discovery,  over  any  part 
of  which  the  completed  location  might  be  laid  during  the  time  al- 


384  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

lowed  by  the  statute  for  its  completion.  After  quoting,  from  the 
opinion  in  Lavagnino  v.  Uhlig,  the  conclusion  of  the  Supreme  Court, 
to  the  effect  that  the  senior  locator  may  abandon  or  forfeit  his  rights 
under  his  location,  and  cause  them  in  effect  to  inure  to  the  benefit 
of  the  junior  locator,  this  court  said :  "If  this  be  the  correct  view  of 
the  law  as  to  the  effect  of  the  forfeiture  of  an  older  claim  which  is 
overlapped  by  a  junior  one — and  we  deem  it  conclusive — for  a  much 
stronger  reason  must  the  failure  of  the  claimant  to  complete  his  loca- 
tion after  posting  his  preliminary  notice  inure  to  the  benefit  of  a 
junior  locator,  whose  claim  is  in  conflict  with  such  other  claim,  when 
the  inchoate  right  acquired  by  the  discovery  and  the  posting  of  the 
notice  never  became  fixed  by  a  completion  of  the  location."  The 
conclusion  was  reached  that  none  of  the  area  surrounding  the  point 
of  discovery,  where  the  notice  is  posted,  is  absolutely  withdrawn 
from  exploration,  but  that  discoveries  and  locations  made  therein  by 
others  pending  the  completion  of  the  senior  location  are  valid,  in  so 
far  as  they  do  not  conflict  with  the  senior  location  when  completed. 
It  was  held  that  the  failure  of  the  discoverer  of  the  Wisconsin  claim 
(the  senior  location)  to  fulfill  the  conditions  subsequent,  by  a  com- 
pletion of  his  location,  did  not  cause  the  area  covered  by  it,  which 
was  in  conflict  with  the  Success  claim  (the  junior  location),  to  revert 
to  the  public  domain,  but  that  it  inured  to  the  benefit  of  the  latter,  the 
location  of  which  had  been  perfected. 

The  rule,  as  broadly  stated  in  the  Lavignino  Case,  was  deemed 
controlling,  even  though  it  abrogated  the  rule  theretofore  declared 
in  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  Ed.  735,  and  subsequent 
cases,  because  it  is  the  special  prerogative  of  the  Supreme  Court  of 
the  United  States  to  construe  federal  statutes.  While  not  strictly 
in  point,  because  the  controversy  in  that  case  grew  out  of  conflicting 
locations  which  had  been  completed  and  thereafter  forfeited,  yet  in 
principle  the  rule  was  deemed  to  include  cases  like  the  Baggaley 
Case,  where  the  prior  locator,  after  initiating  his  location,  had  failed 
to  complete  it  during  the  time  prescribed  by  the  statute,  and  the 
junior  locator  had  completed  his  location.  And  this  is  the  correct 
view ;  for  if  the  forfeiture  or  abandonment  of  a  location  already  com- 
pleted inures  to  the  benefit  of  a  subsecjuent  location  of  the  same 
ground,  made  prior  to  the  forfeiture  or  abandonment,  for  a  much 
stronger  reason,  as  we  said,  should  the  failure  of  the  prior  locator  to 
complete  his  location  inure  to  the  benefit  of  a  junior  locator  of  the 
same  ground,  who  has  actually  complied  with  the  requirements  of 
the  statute. 

Upon  further  consideration  of  the  situation  presented  in  the  Bag- 
galey Case,  we  think  the  correct  result  was  reached,  even  though 
the  rule  of  the  Lavignino  Case  should  have  been  held  wrong  or  in- 
applicable. To  obtain  the  exclusive  possession  of  any  portion  of  the 
public  domain,  there  must  be  a  location,  completed  in  conformity 
with  the  requirements  of  the  federal  statutes  providing  the  mode  for 


FORFEITURE  BY  RELOCATION.  385 

acquiring  title  to  mineral  lands,  and  also  the  state  statutes  supple- 
mental thereto  and  not  inconsistent  therewith,  by  making  a  discovery, 
posting  the  preliminary  notice,  marking  the  boundaries,  doing  the 
preliminary  development  work  within  the  prescribed  time,  and  mak- 
ing the  record  of  a  declaratory  statement  under  oath,  containing  the 
recitals  required  to  be  made  therein.  It  was  said  in  Belk  v.  Meagher, 
supra :  "Mining  claims  are  not  open  to  relocation  until  the  rights  of 
a  former  locator  have  come  to  an  end.  A  relocator  seeks  to  avail 
himself  of  mineral  in  the  public  lands  which  another  has  discovered. 
This  he  cannot  do  until  the  discoverer  has,  in  law,  abandoned  his 
claim  and  left  the  property  open  for  another  to  take  up.  The  right 
of  location  upon  the  mineral  lands  of  the  United  States  is  a  privilege 
granted  by  Congress,  but  it  can  only  be  exercised  within  the  limits 
prescribed  by  the  grant.  Locations  can  only  be  made  where  the  law 
allows  it  to  be  done.  Any  attempt  to  go  beyond  that  will  be  of  no 
avail.  Hence  a  relocation  on  lands  actually  covered  at  the  time  by 
another  valid  and  subsisting  location  is  void ;  and  this  not  only 
against  the  prior  locator,  but  all  the  world,  because  the  law  allows 
no  such  thing  to  be  done.  *  *  *  Location  does  not  necessarily 
follow  from  possession,  but  possession  from  location.  A  location  is 
not  made  by  taking  possession  alone,  but  by  working  on  the  ground, 
recording  and  doing  whatever  else  is  required  for  that  purpose  by 
the  Acts  of  Congress  and  the  local  laws  and  regulations." 

The  right  to  make  a  location  is  purely  statutory.  But  for  the  stat- 
ute, no  exclusive  right  could  be  acquired  ;  and  the  extent  of  the  right, 
both  as  to  the  area  withdrawn  by  the  location  and  the  character  of 
the  title  acquired  by  it,  depending,  as  it  does,  upon  the  fulfillment  of 
conditions  subsequent,  must  be  measured  by  the  provisions  of  the 
statute.  If  this  is  so,  the  posting  of  the  preliminary  notice  certainly 
cannot  for  any  length  of  time  establish  an  exclusive  right  to  a 
greater  area  than  does  the  completed  location,  first,  because  the  stat- 
ute does  not  so  provide,  and,  second,  because  a  rule  which  would 
permit  a  prospector  by  posting  his  notice  of  intention  to  locate — 
which  intention  he  is  not  bound  to  carry  out — to  bar  other  pros- 
pectors from  exploring  the  ground  within  the  area  over  which  the 
claim  may  be  floated,  is  manifestly  in  direct  violation  of  the  spirit 
of  the  statute.  As  was  pointed  out  in  the  case  of  Sanders  v.  Noble, 
22  Mont,  no,  55  Pac.  1037,  and  Bramlett  v.  Flick,  23  Mont.  95,  57 
Pac.  869,  the  time  allowed  under  the  statute  to  mark  definitely  the 
boundaries  of  the  location,  is  intended  to  give  the  discoverer  of  a 
lode,  who  has  posted  his  notice,  time  for  exploration,  so  that  he  may 
know  how  to  lay  his  claim.  The  result  is  that  if  he  completes  his 
location  within  the  statutory  period,  it  relates  to  the  date  of  the  no- 
tice ;  but  it  can  have  no  other  result.  It  is  true  that  in  swinging  his 
claim  he  may  conflict  with  junior  locators,  but  this  cannot  destroy 
their  rights,  except  so  far  as  the  conflict  extends.  The  right  ac- 
quired by  posting  the   notice  is  merely  a  preference  privilege  of 

25 — Mining  Law 


386  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

making  a  location  which,  when  completed,  will  result  in  the  appro- 
priation of  the  area  covered  by  it,  to  the  exclusion  of  any  junior 
location  with  which  it  conflicts.  This  we  held  in  the  Baggaley  Case.^^ 

^^  "The  principle  is  therefore  as  firmly  established  as  before  that  a  location 
is  void  which  is  made  upon  ground  covered  at  the  time  by  a  prior,  valid,  and 
subsisting  location.    Swanson  v.  Kettler  (Idaho)  105  Pac.  1059. 

"What  constitutes  a  valid  subsisting  location  within  that  principle,  or,  to 
state  it  more  definitely,  at  what  stage  in  the  location  proceedings  the  ground 
becomes  segregated  from  the  public  domain,  so  as  to  invalidate  a  junior  con- 
flicting location  from  the  beginning,  is  a  question  upon  which  there  is  not  a 
uniformity  of  decision.  In  Colorado  it  is  held  that  a  notice  properly  made 
and  posted  upon  a  valid  discovery  constitutes  an  appropriation  of  the  terri- 
tory therein  specified,  so  that,  during  the  period  allowed  for  performing  the 
other  acts  required  to  designate  the  location  no  one  can  initiate  a  conflicting 
location  which  would  be  rendered  valid  by  the  mere  failure  of  the  first  locator 
to  perform  the  other  necessary  acts  within  the  time  prescribed  by  law.  Omar 
V.  Soper,  11  Colo.  380,  18  Pac.  443,  7  Am.  St.  Rep.  246;  Sierra  Blanca  Min. 
&  Reduction  Co.  v.  Winchell,  35  Colo.  13,  83  Pac.  628.  In  Erhardt  v.  Boaro, 
113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  1113,  it  was  held  that  a  location  no- 
tice, claiming  1,500  feet  on  'this  mineral-bearing  lode,  vein  or  deposit,'  was  to 
be  limited  to  an  equal  number  of  feet  on  the  course  of  the  lode  or  vein  in 
each  direction  from  the  discovery  point,  and  to  that  extent  it  was  sufficient 
as  a  notice  of  discovery  and  location,  and  that  during  the  period  prescribed 
by  statute  for  more  completely  designating  the  location  the  locators  were  en- 
titled to  such  possession  as  would  enable  them  to  make  the  necessary  exca- 
vations and  prepare  the  proper  certificate  for  record.  The  suit  was  one  jjrought 
by  the  prior  locator  against  others  who,  after  the  posting  of  the  prior  loca- 
tion notice,  and  within  the  period  for  completing  the  location,  entered  upon 
the  ground,  roimoved  the  prior  notice,  posted  at  the  same  point  a  notice  of 
their  own  location,  and  maintained  possession  by  threats  of  violence  to  the 
prior  locator,  thereby  preventing  him  from  sinking  the  requisite  discovery 
shaft  during  the  statutory  period,  though  he  had  caused  the  boundaries  of 
his  claim  to  be  secretly  marked,  and  a  location  certificate  to  be  recorded.  The 
court  said  that  as  against  the  defendants  the  plaintiffs  were  entitled  to  be 
reinstated  in  the  possession  of  their  claim,  and  'they  could  not  be  deprived  of 
their  inchoate  rights  by  the  tortious  acts  of  others ;  nor  could  the  intruders 
or  trespassers  initiate  any  rights  which  would  defeat  those  of  the  prior  dis- 
coverers.' 

"The  rule  adopted  in  Nevada  is  that  where  the  prior  locator  posts  the  requi- 
site notice,  and  properly  marks  the  boundaries  of  the  claim  within  the  statu- 
tory period,  the  ground  becomes  segregated  from  the  public  domain  from  the 
date  of  posting  the  notice,  so  that  during  the  statutory  period  for  perfecting 
the  location  the  area  embraced  in  the  claim  will  not  be  open  to  location  by 
others,  or  until  after  a  failure  to  do  the  other  work  required  to  be  done  within 
such  period.  Nash  v.  McNamara,  supra  [30  Nev.  114].  In  Montana  the  mere 
posting  of  a  location  notice,  under  which  the  locator  might,  within  the  statu- 
tory period  for  completing  a  location,  swing  his  claim  in  any  direction,  is  not 
sufficient  to  withdraw  absolutely  from  the  public  domain  the  extent  of  terri- 
tory claimed  by  the  notice  to  have  been  located.  In  so  deciding  the  court 
referred  to  the  case  of  Lavagnino  v.  Uhlig,  supra,  as  authority  for  the  conclu- 
sion, and  upon  the  reasoning  of  the  opinion  we  think  it  is  to  be  understood 
that  the  Montana  court  would  hold  that  the  area  embraced  within  a  mining 
claim  does  not  become  appropriated  ground  so  as  to  invalidate  a  junior  loca- 
tion until  the  senior  location  is  completed  by  performing  all  the  necessary 
location  acts. 

"In  the  case  at  bar  it  appears  that  the  very  place  at  which  the  senior  lo- 


FORFEITURE  BY  RELOCATION.  387 

But,  however  this  may  be,  the  rule  as  stated  in  the  Lavignino  Case 
has  been  entirely  discredited  by  subsequent  decisions  of  the  Supreme 
Court  of  the  United  States,  notably  in  Brown  v.  Gurney,  201  U.  S. 
184,  26  Sup.  Ct.  509,  50  L.  Ed.  717,  and  in  Farrell  v.  Lockhart,  210 
U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  994,  16  L.  R.  A.  (N.  S.)  162, 
and  the  rule  declared  in  Belk  v.  Meagher,  supra,  reaffirmed.    *    *    * 

The  court  found  that  at  the  time  the  location  of  the  June  Bug  was 
made,  the  Rolf  was  a  valid,  subsisting  claim;  and  since  the  dis- 
covery of  the  June  Bug  was  within  the  limits  of  the  ground  already 
appropriated  under  the  Rolf  location,  the  conclusion  by  the  district 
court  that  the  June  Bug  location  was  void  ab  initio  was  clearly  cor- 
rect. The  result  is  that'the  judgment  and  order  of  the  district  court 
must  be  affirmed. 

Affirmed. 

cators  posted  their  notice  was  attempted  to  be  appropriated  by  the  junior 
locators,  for  their  notice  was  posted  at  the  same  place,  and  they  adopted  or 
claimed  the  same  point  of  discovery,  and  it  is  clear  that  the  junior  locators 
understood  perfectly  what  ground  was  intended  to  be  located  under  the  prior 
location,  and  the  boundaries  thereof  were  definitely  marked.  The  junior 
locators  also  sunk  their  shaft  in  such  close  proximity  to  the  old  discovery 
shaft,  as  well  as  the  discovery  shaft  of  the  new  location,  that  they  must  have 
known,  and  indeed  the  evidence  shows  that  they  did  know,  that  it  was  within 
the  limits  of  the  ground  claimed  under  the  senior  notice.  That  the  postmg 
of  the  senior  location  notice,  based  at  the  time  upon  a  valid  discovery,  en- 
titled the  locators  to  such  possession  during  the  statutory  period  as  would 
enable  them  to  complete  the  location  by  performing  the  necessary  acts  is  clear, 
and  they  might  have  maintained  a  suit  to  recover  possession  if  excluded 
therefrom.  . 

"But  whether  that  right  of  possession,  even  with  the  boundaries  of  the  loca- 
tion marked,  causes  a  segregation  of  the  territory  from  the  public  domain 
so  that  it  may  not  be  legally  located  by  others  during  the  statutory  period 
aforesaid  is  a  question  that  need  not  be  decided.  A  right  to  public  lands 
cannot  be  acquired  by  trespass,  and  an  entry  upon  the  prior  possession  of  an- 
other is  a  trespass  tending  to  breaches  of  the  peace,  and  should  not  be  en- 
couraged. It  is  unnecessary  to  decide  whether  a  discovery  and  posting  of 
notice  elsewhere  upon  the  claim  than  the  place  where  plaintiffs  did  post  their 
notice  and  claim  discovery  would  have  constituted  a  trespass  such  as  to  make 
ineffective  their  effort  to  initiate  a  relocation.  We  do  not  think  it  possible 
that  two  competing  location  notices  posted  at  identically  the  same  place, 
covering  and  claiming  the  same  point  of  discovery,  can  both  be  valid  during 
the  same  period  of  time.  One  must  give  way  to  the  other.  The  prior  notice, 
if  sufficient  in  form  and  based  on  a  valid  discovery,  necessarily  has  precedence, 
and  entitles  the  discoverer  and  locator  to  the  sole  benefit  of  the  discovery  at 
that  point  during  the  period  for  completing  his  location,  unless  he  abandons 
it  in  the  meantime.  During  such  period  the  same  discovery  is  not  subject  to 
appropriation  by  another  for  the  purpose  of  initiating  a  right  by  location.  The 
act  of  plaintiffs  and  their  then  associate  in  posting  their  notice  at  the  place 
where  they  found  the  notice  of  Hunter  and  Woodruff  was  clearly  a  trespass 
upon  the  possession  and  rights  of  the  latter,  and  quite  as  ineffectual  to  give 
them  any  right  as  it  would  have  been  if  they  had,  in  addition  to  posting  their 
notice,  destroyed  or  removed  the  prior  notice."  Potter,  C.  J.,  in  Bergquist  v. 
West  Virginia-Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  683-684. 


388  LABOR,    IMPROVEMENTS    AND    ABANDONMENT.  ■ 

SWANSON  V.  SEARS  AND  KETTLER. 

1912.     Supreme  Court  of  the  United  States. 
—  U.  S.  —  32  Sup.  Ct.  455. 

In  error  to  the  Supreme  Court  of  the  State  of  Idaho  to  review  a 
judgment  which  affirmed  a  judgment  of  the  District  Court  of  Blaine 
County,  in  that  state,  in  favor  of  defendant  in  a  suit  over  the  right 
of  possession  of  a  mining  claim.    Affirmed. 

See  same  case  below.  17  Idaho,  321,  105  Pac.  1059;  on  rehearing, 
17  Idaho,  339,  105  Pac.  1065. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court : 

The  defendant  in  error  Kettler  applied  for  a  patent  for  a  mining 
claim.  The  plaintiff  in  error  filed  an  adverse  claim  under  Rev.  Stat. 
§  2326,  U.  S.  Comp.  Stat.  1901,  p.  1430,  and  then  brought  this  com- 
plaint to  establish  his  right  of  possession  to  the  area  in  dispute.  The 
facts  are  these:  In  1881  the  defendant's  claim,  then  called  Emma 
No.  2,  was  located,  running  north  and  south.  In  1889  the  plaintifif's 
claim,  Independence  No.  2,  was  located,  running  east  and  west,  its 
westerly  end  overlapping  the  southerly  end  of  Emma  No.  2,  and  the 
discovery  being  within  the  overlapping  part.  Kettler,  who  then  had 
Emma  No.  2,  failed,  because  of  the  illness  of  her  daughter,  to  do 
the  assessment  work  upon  it  for  1903,  and,  supposing  that  to  be  the 
only  way  to  hold  the  ground,  relocated  it  on  January  i,  1904,  as 
IMalta  No.  i,  since  which  time  she  has  done  the  required  annual 
work.  The  only  question  is  whether,  on  the  failure  of  the  defendant, 
as  stated,  for  1903,  the  plaintiff's  location  attached,  or  whether  it 
was  wholly  void.  The  state  courts  gave  judgment  for  the  defendant 
(17  Idaho,  322,  105  Pac.  1059),  and  the  plaintiff  brought  the  case 
to  this  court. 

The  argument  for  the  plaintiff  is  a  vain  attempt  to  reopen  what 
has  been  established  by  the  decisions.  A  location  and  discovery  on 
land  withdrawn  quoad  hoc  from  the  public  domain  by  a  valid  and 
subsisting  mining  claim  is  absolutely  void  for  the  purpose  of  found- 
ing a  contradictory  right.  Belk  v.  Meagher,  104  U.  S.  279,  26  L. 
ed.  735,  I  Mor.  Min.  Rep.  510;  Gwillim  v.  Donnellan,  115  U.  S.  45, 
29  L.  ed.  348,  5  Sup.  Ct.  Rep.  mo,  15  Mor.  Min.  Rep.  482.  This 
doctrine  was  not  qualified  in  its  proper  meaning  by  Del  Monte  Min. 
&  Mill.  Co.  V.  Last  Chance  Min.  &  Mill.  Co.  171  U.  S.  55,  43  L-  ed. 
72,  18  Sup.  Ct.  Rep.  895,  19  Mor.  Min.  Rep.  370,  for  that  case  at- 
tributed effect  to  the  overlapping  location  only  for  the  purpose  of 
securing  extralateral  rights  on  the  dip  of  a  vein  the  apex  of  which  was 
within  the  second  and  outside  of  the  first, — rights  consistent  with  all 
those  acquired  by  the  first  location.  See  Creede  &  C.  C.  Min.  &  Mill. 
Co.  v.  Uinta  Tunnel  Min.  &  Transp.  Co.  196  U.  S.  337,  342,  49  L. 
ed.   501,    505,   25    Sup.   Ct.   Rep.   266.     The   principle  of   Belk   v. 


FORFEITURE  BY  RELOCATION.  389 

Meagher  was  reaffirmed  (171  U.  S.  78,  79,  43  L.  ed.  82,  18  Sup.  Ct. 
Rep.  895,  19  Mor.  Min.  Rep.  370),  as  it  was  again  in  Clipper  Min. 
Co.  V.  Eli  Min.  &  Land  Co.  194  U.  S.  220,  226,  227,  48  L.  ed.  944, 
949,  950,  24  Sup.  Ct.  Rep.  632,  and  in  Brown  v.  Gurney,  201  U.  S. 
184,  193,  50  L.  ed.  717,  722,  26  Sup.  Ct.  Rep.  509.  It  is  true  that 
there  is  reasoning  to  the  contrary  in  Lavagnino  v.  Uhlig,  198  U.  S. 
453,  49  L.  ed.  1123,  25  Sup.  Ct.  Rep.  716,  but  in  Farrell  v.  Lockhart, 
210  U.  S.  142,  146,  147,  52  L.  ed.  994,  996,  997,  16  L.  R.  A.  (N.  S.) 
162,  28  Sup.  Ct.  Rep.  681,  that  language  was  qualified  and  the  older 
precedents  recognized  as  in  full  force.  We  deem  it  unnecessary^  to 
consider  the  distinctions  attempted  by  the  plaintiff  between  location 
and  relocation,  voidable  and  void  claims,  etc.,  as  the  very  foundation 
of  his  right,  the  offer  and  permission  of  the  United  States  under  Rev. 
Stat.  §  2322,  U.  S.  Comp.  Stat.  1901,  p.  1425,  was  wanting  when  he 
did  the  acts  intended  to  erect  it.  His  entry  was  a  trespass,  his  claim 
was  void,  and  the  defendant's  forfeiture  did  him  no  good. 

There  was  some  attempt  before  us  to  recede  from  the  concession 
made  below,  that  the  defendant  had  a  right  to  relocate  under  Rev. 
Stat.  §  2324,  U.  S.  Comp.  1901,  p.  1426.  We  do  not  see  how  it  could 
help  the  plaintiff  if  the  proposition  were  incorrect,  or  any  sufficient 
reason  for  listening  to  the  argument  in  this  case. 

Judgment  affirmed.^ ^^^ 


BEALS  V.  CONE  et  al. 

1900.     Supreme  Court  of  Colorado.     2.-]  Colo.  473,  62  Pac.  948. 

On  Petition  for  Rehearing. 

Per  Curiam.^*  *  *  *  On  the  subject  of  annual  labor,  the 
court,  by  instruction  No.  24,  directed  the  jury  as  follows : 

"Upon  this  point  the  court  further  instructs  you  that  the  law  does  not  pre- 
sume a  forfeiture  bv  the  faihire  to  perform  annual  labor,  and,  the  plamtiff 
claiming  that  the  O'phir  lode  became  forfeited  for  such  reason,  the  burden 
of  proving  that  the  annual  labor  was  not  done  thereon  is  on  the  plamtiff; 
and  unless  he  has  shown  you,  by  a  fair  preponderance  of  the  evidence,  that 
the  work  was  not  done,  you  are  to  determine  that  question  in  favor  of  the 
defendants." 

The  objection  urged  to  this  instruction  is  that  it  cast  a  burden  upon 
the  appellant  [the  plaintiff]  which  he  was  not  required  to  assume.  The 
evidence  tended  to  establish  that  a  valid  location  of  the  premises  in 
dispute  had  been  made  by  appellees.  This  location  was  prior  to  the 
only  one  under  which  appellant  can  base  any  claim.   The  act  of  con- 

^a  See  note  31,  ante. 

^  Part  only  of  the  opinion  on  rehearing  is  given. 


390  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

gress  (section  2324,  Rev.  St.)  provides  that  a  failure  to  perform  the 
necessary  annual  work  shall  render  a  claim  open  to  relocation,  pro- 
vided the  original  locators  have  not  resumed  work  upon  the  claim 
after  failure  and  before  relocation.  The  fair  construction  of  this  pro- 
vision is  that,  as  between  the  locator  and  the  general  government, 
the  failure  to  do  the  annual  assessment  work  does  not  result  in  a 
forfeiture.  In  other  words,  it  is  not  necessary  to  perform  the  an- 
nual labor,  except  to  protect  the  rights  of  the  locator  against  parties 
seeking  to  initiate  title  to  the  same  premises.  As  against  such  subse- 
quent location,  a  prima  facie  case  is  made  on  the  part  of  the  original 
locator  by  showing  a  valid  location.  Hammer  v.  Milling  Co.,  130 
U.  S.  291,  9  Sup.  Ct.  548,  32  L.  Ed.  964.  To  otherwise  express  our 
views,  it  might  be  said  that  after  a  valid  location  the  title  thus  ac- 
quired remains  so,  whether  the  annual  assessment  work  is  performed 
or  not,  until  forfeited  or  abandoned.  Renshaw  v.  Switzer,  6  Mont. 
464,  13  Pac.  127,  15  Morr.  Min.  R.  345.  It  is  the  location  by  the 
new  claimant,  and  not  the  mere  lapse  of  time,  which  determines  the 
right  of  the  original  locator.  Little  Gunnell  Gold-Min.  Co.  v.  Kim- 
ber,  I  Morr.  Min.  R.  536.  So  that  a  party  seeking  to  initiate  a  claim 
to  mining  premises  already  legally  located  must  prove  that  the  annual 
labor  thereon  has  not  been  performed,  in  order  to  establish  that  the 
ground  so  located  is  subject  to  location.  In  so  far,  then,  as  the  rights 
of  appellant  depended  upon  the  failure  of  appellees  to  perform  the 
assessment  work  for  1897,  ^^  was  incumbent  upon  him  to  establish 
this  fact  by  a  fair  preponderance  of  the  evidence,  or,  as  the  court 
stated,  the  burden  of  proof  was  upon  him  to  show  that  the  work  for 
1897  was  not  in  fact  performed.  Hall  v.  Kearny,  18  Colo.  505,  33 
Pac.  373 ;  Johnson  v.  Young,  18  Colo.  625,  34  Pac.  173 ;  Hammer  v. 
Mining  Co.,  supra. 

The  petition  for  rehearing  [after  affirmance  of  judgment  for  de- 
fendants] is  denied.    Petition  denied. 


Section  3. — Abandonment. 

McCANN  ET  AL.  V.  McMillan  et  al. 
1900.     Supreme  Court  of  California.     129  Cal.  350,  62  Pac.  31. 

Action  by  J.  C.  McCann  and  others  against  J.  C.  McMillan  and 
C.  H.  Barkley.  From  a  judgment  for  plaintiffs,  and  from  an  order 
denying  a  new  trial,  defendant  Barkley  appeals.     Affirmed. 

Per  Curiam.'*^ — *  *  *  Prior  to  January  i,  1896,  H.  B.  Stev- 
ens and  Eugenia  D.  Porter  located  certain  mining  claims,  covering 

"a  Parts  of  the  opinion  are  omitted. 


ABANDONMENT.  391 

the  same  ground  now  claimed  by  plaintiffs,  under  locations  made  by 
themselves  on  January  i,  1897,  the  validity  of  which  is  the  ultimate 
question  here  involved.  No  assessment  work  was  performed  by  the 
prior  locators  during  the  year  1896  on  any  of  the  claims.  On  De- 
cember 28,  1896,  said  Stevens  and  Porter  sold  and  conveyed  their 
said  claims  to  the  defendant  McMillan.  In  December  30,  1896,  Mc- 
Millan and  one  C.  E.  Calm  went  upon  said  claims,  and,  as  claimed 
by  defendants,  abandoned  them,  and  afterwards,  upon  the  same  day 
and  the  next,  relocated  them  for  and  in  the  name  of  defendant  Bark- 
ley.  Plaintiffs  made  their  alleged  locations  on  the  morning  of  Janu- 
ary I,  1897,  assuming  that  the  ground  was  then  open  to  location. 

Plaintiffs'  title  is  controverted  by  appellant  on  each  of  two  princi- 
pal grounds,  which  will  be  noticed  in  their  order : 

I.  That  the  ground  in  controversy  was  not  open  to  location  by  the 
plaintiffs,  because  of  the  locations  made  for  defendant  Barkley  on 
December  30,  1896:  That  the  locations  made  prior  to  1896,  and 
which  were  conveyed  by  Stevens  and  Porter  to  McMillan  on  De- 
cember 28,  1896,  were  at  that  time  valid  locations,  is  not  questioned, 
and,  but  for  the  alleged  abandonment  of  them  by  McMillan  on  De- 
cember 30th,  would  have  continued  to  be  valid  until  midnight  of 
December  31st,  when  the  ground  would  become  forfeited  and  vacant 
because  no  assessment  work  was  done  for  the  year  1896.  The  court 
found  that  the  ground  was  not  vacant  at  the  time  the  Barkley  loca- 
tions were  made,  but  was  vacant  on  January  i,  1897,  when  plaintiffs 
made  their  locations,  and  therefore  found,  in  eft'ect,  that  there  was  no 
abandonment  of  the  claims  by  McMillan  on  December  30th,  but  that 
he  forfeited  them  by  failing  to  do  the  assessment  work  on  them, 
which  failure  left  them  vacant  on  January  i,  1897.  Appellant  con- 
tends that  this  finding  is  not  justified  by  the  evidence.  Mr.  McMillan 
had  never  seen  these  claims  until  December  30th.  He  bought  them 
in  Los  Angeles  on  the  28th,  and  paid  $100  for  them.  But  McMillan 
testified  that  Mr.  Calm  was  interested  with  him  ;  that :  "We  were 
going  to  take  them  up  to  sell  them  to  some  other  party.  I  refer  to 
the  claims  in  the  deed  from  Porter  and  Stevens.  Mr.  Calm  was 
interested  with  me  in  the  purchase,  and  furnished  some  of  the  money. 
I  was  to  stand  my  half  of  the  expenses.  I  paid  Stevens  and  Porter 
one  hundred  dollars.  Mr.  Calm  paid  me  fifty  dollars."  The  next  day 
McMillan  and  Calm  went  to  Daggett,  and  on  the  30th  went  to  the 
mines.  McMillan  testified  that  he  was  disappointed  in  the  looks  of 
the  Dauntless,  and  thought,  as  a  poor  man,  he  could  not  afford  to  do 
his  pro  rata  of  assessment  work,  and  expressed  his  opinion  of  the 
claim  to  Mr.  Calm;  that  on  the  30th  of  December  he  abandoned  all 
interest  in  those  three  claims  which  he  had  under  the  deed.  He  fur- 
ther testified  as  follows :  "On  the  30th  of  December,  when  I  aban- 
doned those  claims,  I  just  said  right  there  that  I  didn't  want  any- 
thing to  do  with  them.  I  relocated  them  on  the  suggestion  of  Mr. 
Calm,  but  not  for  myself.   There  was,  perhaps,  ten  minutes  time  in- 


392  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

tervening  between  the  time  that  I  abandoned  the  claims  and  when 
we  relocated  them.  *  *  *  j  abandoned  all  three  claims  the  same 
day,  the  30th.  Those  claims  were  located  in  the  name  of  C.  H.  Bark- 
ley.  When  I  gave  up  the  claims,  Air.  Calm  said,  'Let  us  take  them 
up  for  Mr.  Barkley.'  That  is  how  we  came  to  relocate  them  for 
Mr.  Barkley.  *  *  *  j  had  not  gone  off  the  ground  from  the 
time  I  abandoned  the  claims  until  I  relocated  them.  *  *  *  j 
knew  I  could  not  hold  the  claims  after  the  31st  unless  I  did  some  as- 
sessment work.  Mr.  Calm  and  myself  did  not  go  to  the  claims  with 
the  intention  of  locating  them  for  some  one  else.  I  went  there  with 
the  intention  of  locating  them  for  myself."  Mr.  Calm  also  testified 
that  he  was  disappointed  and  "didn't  want  any  of  if ;  that  he  sug- 
gested that  they  locate  the  claims  for  Barkley,  a  friend  of  his  who 
lived  in  New  York,  who  had  requested  him  to  make  some  locations 
for  him;  that  McMillan  said  "he  didn't  care  who  took  it  up."  We 
think  the  finding  that  there  was  no  abandonment  is  justified  by  the 
evidence.  "Abandonment,"  as  was  said  in  Myers  v.  Spooner,  55  Cal. 
260,  "is  a  question  of  intention,  and  of  this  intention  the  jury  were 
to  judge  in  view  of  all  the  facts  and  circumstances  of  the  case.  It  is 
true,  as  stated  in  the  brief  of  counsel  for  appellants,  that  Leathe  testi- 
fied at  the  trial  that  there  was  no  intention  by  him  or  his  co-locators 
to  abandon  the  claims.  But  his  testimony  to  that  effect  was  not  con- 
clusive." They  knew  when  they  purchased  the  claims  that  the  as- 
sessment work  for  1896  had  not  been  done,  and  that  their  title  would 
expire  with  the  expiration  of  the  year.  They  intended,  as  was  ex- 
plicitly stated,  to  relocate  for  themselves ;  but  to  wait  until  January 
ist  would  expose  the  claims  to  location  by  others  who  had  an  even 
chance  with  them.  They  could  not  relocate  before  in  any  one's  name 
without  an  abandonment,  and  to  say  to  each  other  that  they  aban- 
doned, and  within  10  minutes,  and  without  leaving  the  ground,  lo- 
cate them  in  the  name  of  a  person  in  New  York,  and  thus  burden  an 
absent  friend  with  mining  claims  which  they  assert  were  not,  to 
them,  worth  doing  the  assessment  work  upon,  is  at  least  improbable. 
But  we  find  at  the  conclusion  of  Mr.  Calm's  testimony  the  statement : 
"When  I  went  on  the  ground  on  the  22d  of  January  I  did  not  look 
for  tools.  We  had  men  on  the  ground  at  that  time,  and,  if  I  had  seen 
tools,  they  might  have  been  theirs.  I  did  not  notice  whether  there 
were  any  tools  there  that  did  not  belong  to  us  or  our  men."  Who 
the  witness  meant  by  "we"  or  "us"  is  not  stated.  It  nowhere  appears 
that  Barkley  was  at  any  time  informed  of  the  location  having  been 
made,  or  that  he  gave  any  directions  or  authority  to  have  any  work 
done.  McMillan,  by  his  answer,  disclaimed  all  right,  title,  or  interest 
in  said  claims  or  either  of  them  ;  but  he  testified  that  he  was  there  in 
January  and  April,  1897,  and  did  work  on  the  Mars  in  April  of  that 
year ;  that  the  Dauntless  and  Minerva  also  had  work  done  upon  them 
in  1897, — and  added,  "I  was  there  in  possession  of  those  claims ;" 
that  work  was  done  in  January  and  February ;  and  that  he  was  there 


ABANDONMENT,  393 

in  possession,  doing  the  work,  when  the  injunction  was  served.  Mc- 
Millan further  testified  that  he  was  on  those  claims  on  December 
31st,  the  day  after  the  alleged  abandonment ;  that  "There  was  no  way 
of  getting  in  there,  except  on  horseback,  and  I  went  to  see  if  I  could 
find  a  good  place  for  a  wagon  road ;"  and  that  he  was  there  on  Janu- 
ary i6th,  also.  Barkley's  deposition  was  not  taken,  nor  was  there  any 
evidence  that  he  was  ever  informed  that  these  mining  claims  were 
located  in  his  name,  or  that  work  was  being  done  for  him,  or  that 
Calm  or  McMillan  were  his  agents.  Barkley's  answer  was  verified 
by  McMillan,  but  even  that  he  did  not  do  as  agent,  but  as  one  of 
the  defendants  in  an  action  in  which  he  disclaimed  all  interest.  We 
have  gone  into  this  matter  thus  fully  because  of  the  direct  testimony 
of  McMillan  and  Calm  to  the  alleged  abandonment.  It  was  for  the 
trial  court  to  determine  the  fact,  and  we  think  the  circumstances 
justify  the  conclusion  that  there  was  no  abandonment.     *     *     * 

Our  conclusion  is  that  the  findings  are  justified  by  the  evidence, 
and  that  there  are  no  errors  which  would  justify  a  reversal  of  the 
judgment.  The  judgment  and  order  are  affirmed. ^^ 


CONN  ET  AL.  v.  OBERTO. 
1904.     Supreme  Court  of  Colorado.     32  Colo.  313,  76  Pac.  369. 

Action  by  Peter  Oberto  against  John  E.  Conn  and  C.  A.  Smith. 
From  a  judgment  for  plaintiff,  defendants  appeal.  Affirmed. 

Steele,  J. — On  May  16,  1900,  Alfred  Smith  filed  in  the  county 
clerk  and  recorder's  office  of  the  county  of  San  Miguel  his  location 
certificate  stating  that  on  May  15,  1900,  he  duly  discovered  and  lo- 
cated the  Jupiter  lode.  Smith  sold  a  tract  of  150  by  100  feet  within 
the  boundaries  of  the  claim,  reserving  mineral  rights,  and  the  defend- 
ants' through  intermediate  conveyances,  became  the  owners  of  the 
portion  sold  by  Smith,  and  at  the  time  of  the  bringing  of  suit  were 
in  possession  thereof.  Smith  also  sold  his  interest  in  the  Jupiter 
claim,  and  prior  to  September  11,  1901,  H.  M.  Hogg,  Joe  Oberto, 
and  James  Shain  were  the  owners  of  the  location,  their  interests  be- 
ing one-half,  one-fourth,  and  one-fourth,  respectively.  While  the 
property  stood  in  the  names  of  Hogg,  Joe  Oberto,  and  Shain,  Peter 
Oberto  was  given  permission  by  Hogg  and  Joe  Oberto  to  relocate  the 
claim.  On  September  11,  1901,  Peter  Oberto  located  the  Hattie  lode, 
using  the  discovery  shaft  of  the  Jupiter  and  adopting  the  Jupiter 

"  So  "Such  a  thing  as  a  conditional  abandonment  cannot  be  recognized. 
Where  the  owner  allows  strangers  to  hold  a  claim  under  color  of  title,  stand- 
ing by  and  intending  to  resume  work  only  in  case  its  development  shows  pay, 
his  action  amounts  to  abandonment.  Trevaskis  v.  Peard,  111  Cal.  599." — 
Morrison's  Mining  Rights,  14  Ed.,  108. 


394  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

stakes.  On  October  31,  1901,  he  commenced  this  action  against  the 
defendants,  and  among  other  things  alleged  that  they  were  wrong- 
fully and  unlawfully  withholding  a  portion  of  the  Hattie  claim  from 
him.  The  answer  denies  the  allegations  of  the  complaint,  and  by  way 
of  cross-complaint  the  defendants  alleged  that  they,  by  virtue  of  cer- 
tain deeds  of  conveyance,  became  and  then  were  the  owners  and  in 
actual  possession  of  that  portion  of  the  claim  in  dispute.  The  repli- 
cation alleges  that  Alfred  Smith,  the  locator  of  the  Jupiter,  made  no 
discovery  of  mineral  in  place  within  the  boundaries  of  the  claim ; 
and,  further,  that  the  claim  was  abandoned  by  the  owners  thereof 
prior  to  the  location  of  the  Hattie.  The  verdict  was  in  favor  of  the 
plaintiff,  and  the  defendants  appealed. 

Mr.  Hogg  testified  in  part  as  follows:  "I  do  not  remember  just 
when,  but  I  know  that  some  time  prior  to  the  nth  of  September 
there  was  some  talk  of  doing  considerable  work  on  the  claim,  and  I 
didn't  care  to  bother  with  it  any  more,  and  I  told  Oberto  that  I 
wouldn't  have  anything  more  to  do  with  it.  Some  days  after  that  he 
and  his  brother,  Pete,  came  to  my  office.  At  that  time  Joe  Oberto 
and  myself  owned  all  the  property,  so  far  as  the  records  appear,  and 
so  far  as  I  know ;  and  he  says  he  didn't  care  to  have  anything  more 
to  do  with  it,  and  he  wanted  to  know  if  his  brother,  Pete,  might  lo- 
cate it.  Shain,  I  remember,  also  had  a  quarter  interest  at  that  time, 
and  I  said,  so  far  as  I  was  concerned,  I  had  no  objection,  and  Pete 
was  told  to  go  ahead ;  and  I  saw  Shain  afterwards,  and  he  said  he 
did  not  care  to  have  anything  to  do  with  it.  I  know  that  about  the  lat- 
ter part  of  August  or  the  first  of  September  we  had  abandoned  the 
property."  Exceptions  were  taken  to  the  giving  of  certain  instruc- 
tions and  the  refusal  to  give  others,  but  the  appellants  rely  mainly 
upon  the  propositions :  First,  that  there  was  no  abandonment  of  the 
Jupiter  claim  at  the  time  of  the  location  of  the  Hattie ;  second,  that, 
they  being  in  possession  of  a  portion  of  the  Jupiter  claim  under  a 
color  of  right,  no  valid  right  could  be  initiated  by  Oberto ;  and,  third, 
that  under  section  2019,  Mills'  Ann.  St.,  the  abandonment  should 
have  been  evidenced  by  writing. 

It  was  held  in  Derry  v.  Ross  et  al.,  5  Colo.  295,  and  approved  in 
the  recent  case  of  Miller  v.  Hamley  et  al.  (not  yet  officially  reported) 
74  N.  W.  980,  that  abandonment  is  a  matter  of  intention,  and  oper- 
ates instanter.  When  a  miner  gives  up  his  claim  and  goes  away  from 
it  without  any  intention  of  repossessing  it,  and  regardless  of  what 
may  become  of  it  or  who  may  appropriate  it,  an  abandonment  takes 
place,  and  the  property  reverts  to  its  original  status  as  a  part  of  the 
unoccupied  public  domain.  It  is  then  publici  juris,  and  open  to 
location  by  the  first  comer.  The  action  of  Hogg  and  Oberto,  the 
owners  of  three-fourths  of  the  Jupiter,  in  granting  permission  to 
Peter  Oberto  to  enter  into  possession  of  the  Jupiter  and  locate  the 
Hattie  thereon,  was  an  abandonment  on  their  part  of  the  Jupiter 
claim ;  but  such  action  did  not  deprive  Shain,  the  owner  of  the  re- 


RESUMPTION    OF    WORK.  395 

maiiiing  portion,  of  this  interest  in  the  Jupiter.  Shain,  however,  is 
not  before  us  asserting  an  interest  in  the  Jupiter,  and  the  testimony 
shows  that  he  subsequently  declared  to  Mr.  Hogg  that  he  did  not 
care  to  have  anything  more  to  do  with  the  Jupiter  claim.  This  state- 
ment, under  the  circumstances,  must  be  regarded  as  an  abandonment 
by  him  of  his  interest  in  the  claim,  and  as  a  ratification  of  the  act  of 
his  copartners  in  permitting  Oberto  to  locate  the  Hattie. 

The  argument  advanced  by  appellants  that,  as  they  were  in  pos- 
session of  a  portion  of  the  claim  under  color  of  title,  the  territory 
was  not  open  to  location  under  the  mineral  laws,  is  not  sound.  The 
possession  of  the  appellants  under  a  conveyance  from  the  original 
locator  of  the  claim  could  not  ripen  into  a  perfect  title  unless  the 
original  locator  secured  title  from  the  government.  Theirs  was  only 
a  right  of  possession  during  the  time  the  locator,  or  those  to  whom 
he  had  sold  with  notice,  remained  in  possession  by  virtue  of  the 
rights  conferred  upon  locators  of  mining  claims  under  the  law,  and 
their  title  would  ripen  into  a  perfect  title  whenever  patent  issued, 
but  when  the  locator  of  the  mining  claim  abandoned  it  all  the  land 
embraced  within  the  original  location  became  public  land  and  open 
to  entry,  and  the  right  of  the  grantees  of  the  locator  to  occupy  a 
portion  of  the  land  terminated.  The  terms  "unoccupied"  and  "un- 
appropriated" refer  to  land  that  is  not  in  the  possession  of  one  who 
claims  the  right  of  possession  by  virtue  of  a  compliance  with  the  law, 
and  land  in  the  possession  of  one  who  has  made  a  valid  discovery  and 
location  is  not  subject  to  location  by  another  until  after  abandonment 
or  forfeiture.  But  appellants  did  not  claim  to  be  in  possession  of  the 
land  by  virtue  of  their  compliance  with  the  mining  law,  but  by  vir- 
tue of  a  conveyance  from  one  who  had  perhaps  made  a  valid  discov- 
ery and  location,  but  had  sold  the  location,  and  those  to  whom  he  had 
sold  had  abandoned  the  claim.  Section  2019,  Mills'  Ann.  St.  has  no 
application  to  this  contract.  We  are  of  opinion,  therefore,  that  there 
was  an  .abandonment  of  the  Jupiter  claim  by  the  owners  thereof,  and 
that  the  location  of  the  Hattie  was  made  upon  unoccupied  and  unap- 
propriated land. 

The  judgment  is  affirmed.   Affirmed. 


Section  4. — Eesumption  of  Work. 

HONAKER  V.  MARTIN  et  al. 

1891.     Supreme  Court  of  Montana,     ii  Mont.  91,  27  Pac.  397. 

Action  to  recover  possession  of  a  mining  claim  by  C.  W.  Hon- 
aker  against  John  F.  Martin  and  another.  Verdict  and  judgment  for 
plaintiff.    Defendants  appeal.   Reversed. 


396  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

Blake,  C.  J.^^^ — This  action  was  commenced  by  Honaker,  the  re- 
spondent, to  recover  the  possession  of  tlie  Lone  Star  Lode  mining 
claim.  The  answer  alleges  that  "no  work  or  improvements  were 
done  or  performed  upon  said  Lone  Star  mine  or  claim  in  the  year 
1889,  and  in  consequence  thereof  said  claim  was  forfeited,  if  it  ever 
existed."  The  court  instructed  the  jury  that  the  evidence  "shows  that 
the  plaintiff,  Honaker,  did  not  do  the  required  amount  of  work  on 
said  claim  in  said  year  1889,  ^^d  that,  therefore,  said  claim  was  open 
to  relocation,  by  any  proper  person,  on  the  ist  of  January.  1890.  *  *  * 
But  to  this  the  plaintiff  replies,  and  says  that  he  resumed  work  upon 
said  claim  after  his  failure  to  do  said  work,  and  before  the  time 
(April  25,  1890)  of  the  location  of  said  claim  by  the  defendants." 
The  jury  were  further  instructed  that  there  was  only  one  question 
for  their  consideration,  to-wit :  "Did  the  plaintiff,  Honaker,  in  good 
faith,  honestly  and  in  fact,  resume  proper  work  upon  said  claim  prior 
to  said  location  thereof  by  the  defendants?"  *  *  *  Jn  Gonu  v. 
Russell,  3  Alont.  358,  it  was  held  that  the  locator  of  a  lode  mining 
claim  "had  the  right  to  defeat  the  forfeiture  of  his  interest  in  the 
property  by  resuming  labor  thereon  before  a  location  thereof  had 
been  made  by  another ;"  and  that  "the  resumption  of  labor  in  good 
faith,"  by  one  who  had  failed  to  comply  with  the  statute,  supra,  and 
perform  the  work  thereby  required,  before  the  completion  of  a  new 
location  which  had  been  commenced,  nullified  the  acts  of  the  second 
locator.  Gonu  posted  his  notice,  but  did  not  mark  out  his  boundaries 
until  Russell  had  resumed  work.  The  case  of  Pharis  v.  Muldoon,  75 
Cal.  284,  17  Pac.  Rep.  70,  is  to  the  same  effect,  but  an  additional  fact 
appears:  "At  one  o'clock  a.  m.  of  that  day  (January  i,  1886)  plain- 
tiff posted  his  notice,  but  did  not  mark  out  his  boundaries  until 
January  5th.  In  the  mean  time, — that  is  to  say,  at  the  usual  hour  of 
commencing  work  of  that  kind. — on  the  ist  day  of  January,  1886, 
the  defendant  resumed  labor  on  his  claim ;  did  ten  dollars"  worth 
of  work  on  it  up  to  the  5th  of  January,  1886;  and  afterwards,  dur- 
ing that  year,  performed  labor  upon  it  to  the  amount  of  two  hundred 
dollars  more."  See,  also,  Lacey  v.  Woodward,  (N.  M.)  25  Pac.  Rep. 
785  ;  Belk  v.  Meagher,  3  Mont.  65,  afifirmed  104  U.  S.  279.  In  the 
last  case  Chief  Justice  Waite  said  :  "As  we  think,  the  exclusive  pos- 
sessory rights  of  the  original  locator  and  his  assigns  were  continued, 
without  any  work  at  all,  until  January  i,  1875;  and  afterwards  if, 
before  another  entered  on  his  possession  and  relocated  the  claim,  he 
resumed  work  to  the  extent  required  by  the  law.  His  rights,  after 
resumption,  were  precisely  what  they  would  have  been  if  no  default 
had  occurred."  This  opinion  seems  to  give  a  meaning  to  the  amount 
of  labor  demanded  by  the  statute,  supra,  and  it  must  be  "to  the 
extent  required  by  the  law."  Mr.  Justice  Hallett  instructed  the 
jury  in  the  LTnited  States  circuit  court  for  the  district  of  Colorado, 

^°a  Parts  of  the  opinion  are  omitted. 


RESUMPTION    OF    WORK.  397 

in  Mining-  Co.  v.  Kimber,  i  Alorr.  Min.  Rep.  536,  that  a  party,  who 
fails  to  work  his  claim  according  to  the  statute,  supra,  has  the  right, 
before  the  new  claimant  has  perfected  his  location,  "to  re-enter,  and 
upon  doing  the  annual  work  required  by  law,  he  "would  become  re- 
invested with"  his  "first  estate."  We  think  that  the  foregoing 
authorities  establish  general  and  consistent  principles. 

The  case  of  Mining  Co.  v.  Deferrari,  62  Cal.  160,  cannot  be 
deemed  sound  in  its  construction  of  the  statute,  supra.  The  question 
is  so  important  in  its  consequences  that  we  quote  at  length  from  the 
opinion  of  Mr.  Justice  McKin.stry  :  "The  court  found  that  in  the 
year  1880  plaintiff  expended,  in  labor  on  the  two  claims,  one  hundred 
dollars;  that  in  January,  1881,  plaintiff  resumed  work  upon  the 
claims,  and  expended  in  labor  twenty-four  dollars.  Defendants 
entered  and  located  in  August,  1881.  As  the  plaintiff  had  resumed 
work  upon  the  claims  'after  failure,  and  before  location,'  his  rights 
were  not  forfeited  when  defendants  entered.  Rev.  St.  U.  S.  §  2324. 
It  is  urged  that  the  resumption  of  work  was  not  such  as  is  required 
by  the  act  of  congress ;  that,  if  so,  one  may  fail  to  perform  the 
work  required  by  the  act  during  any  year,  and  yet  keep  alive 
his  right  indefinitely  by  doing  any  work  during  the  January  follow- 
ing. In  other  words,  that,  by  such  construction,  while  the  act  re- 
quires one  hundred  dollars'  worth  of  work  each  year,  a  party  may 
keep  his  claim  good  by  doing  one  dollar's  worth  each  year,  provided 
he  shall  succeed  in  doing  it  before  a  relocation  can  be  accomplished. 
It  is  not  necessary  to  decide  that  an  attempt  to  assert  a  continuous 
right  may  be  based  upon  a  pretense  of  work,  so  plainly  a  sham  as 
that  it  will  be  disregarded.  But  here  the  work  done  was  actual  and 
valuable.  The  letter  of  the  statute  upholds  the  view,  as  to  resump- 
tion of  work,  taken  by  the  court  below,  and  forfeitures  and  de- 
nouncements are  not  to  be  favored  by  basing  them  upon  language 
which  does  not  plainly  and  unmistakably  provide  for  them."  Of 
this  case  Mr.  Morrison  says:  "Such  a  decision  is  only  trifling  with 
the  law,  and  the  rights  of  parties  based  on  the  law."  Mining  Rights 
in  Colorado,  (6th  Ed.)  61.  *  *  *  The  result  of  the  holding  in 
Mining  Co.  v.  Deferrari,  supra,  is  to  defeat  the  real  objects  of  the 
statute,  supra,  which  are  the  exploration  and  development  of  min- 
ing claims.  Every  person  who  continues  in  the  possession  of  such 
property  upon  the  public  domain  of  the  United  States,  without  per- 
forming annually  the  labor  that  has  been  specified,  violates  the  condi- 
tions of  the  grant  from  the  government.  The  resumption  of  work 
by  the  original  locator,  whose  rights  are  subject  to  forfeiture,  with- 
out the  expenditure,  with  reasonable  diligence,  during  the  year  of  the 
sum  of  $100  for  labor  or  improvements  upon  the  mine,  is  an  evasion 
of  the  statute,  supra.  If  we  comprehend  the  language  of  Chief 
Justice  Waite,  supra,  and  Mr.  Justice  Hallett,  supra,  the  courts 
will  not  legalize  such  overt  acts  of  omission  as  are  stated  in  Mining 
Co.  V.  Defarrari,  supra.    The  question,  which  is  embodied  in  the  in- 


398  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

structions  of  the  court  below,  was  submitted  without  any  explanation 
of  the  words  "resumed  work,"  and  would  have  a  tendency  to  mislead 
the  jury.  They  could  reasonably  infer  that  any  labor  showing  the 
intention  of  Honaker  to  reassert  his  claim  to  the  property  was  a 
sufficient  compliance  with  the  law.  When  the  testimony  is  compared, 
there  can  be  no  doubt  that  this  was  the  effect. 

It  is  shown  by  the  evidence  upon  the  part  of  Honaker  that  he  did 
not  represent  the  lode  in  the  year  1887,  and  relocated  it  January  i, 
1888 ;  that  he  did  not  go  upon  the  property  from  this  date  until 
the  month  of  May,  1890,  when  the  defendants  were  in  possession ; 
that  about  December  20,  1889,  he  made  a  contract  with  Richard 
Berriman  to  represent  the  same  for  the  year  1889;  that  Berriman 
labored  from  December  22,  1889,  until  January  12,  1890,  under  the 
contract,  and  received  from  Honaker  $100;  that  logs,  slabs,  and 
lumber  of  the  value  of  $63  were  conveyed  to  the  premises,  and 
never  used ;  that  these  materials  were  for  a  shaft-house  or  any  nec- 
essary purpose  on  the  mine ;  that  Berriman  testified  he  drifted 
"perhaps  five  or  six  feet,"  and  did  not  haul  any  dirt  from  the  mine ; 
that  he  cut  in  the  woods  "about  half  a  dozen"  logs,  and  put  them 
in  the  mine;  that  he  carried  there  a  rope,  bucket,  and  shovels  and 
picks,  and  removed  them  when  he  quit  work ;  that  there  was  no  wind- 
lass upon  the  mine ;  and  that  he  did  not  know  how  much  he  earned 
in  January,  1890,  but  there  was  "over  fifty  dollars  of  it."  The  testi- 
mony of  the  defendants  tended  to  prove  that  no  work  was  done  for 
Honaker  upon  the  property  in  the  years  1889  and  1890 ;  that  the  logs, 
slabs,  and  lumber  were  hauled  there,  and  not  used;  that  tools, 
buckets,  and  wire  rope  were  taken  to  the  premises  by  Berriman,  and 
carried  away ;  that  there  were  no  timbers  in  the  mine ;  and  that  the 
property  was  examined  carefully  to  see  what  labor  had  been  done 
upon  it,  and  located  by  the  defendants,  April  25,  1890.  It  is  clear 
that  the  respondent  has  not  acted  honestly  and  in  good  faith,  and 
that,  during  the  years  1887,  1888,  1889,  and  1890,  when  the  lode 
should  have  been  developed  by  the  expenditure  of  the  sum  of  $400 
for  work  or  improvements,  there  is  a  conflict  in  the  testimony  upon 
the  point  as  to  whether  labor  of  the  value  of  one  cent  has  been  ex- 
pended thereon.  When,  therefore,  he  availed  himself  of  the  statu- 
tory privilege  of  resuming  work  to  preserve  his  estate  from  forfei- 
ture, we  hold  that  he  should  have  prosecuted  the  same  with  reason- 
able diligence,  until  the  requirements  for  the  annual  labor  and  im- 
provements had  been  obeyed.  The  tools,  rope,  and  windlass  were 
taken  from  the  premises  about  January  12,  1890,  and  the  logs,  slabs, 
and  lumber  have  not  been  used  in  any  manner,  although  nearly  two- 
thirds  of  the  money  which  was  paid  by  Honaker  to  Berriman  have 
been  therein  invested.  What  is  the  fair  presumption  from  this  con- 
duct? Can  it  be  maintained  that  it  is  the  intention  of  the  statute, 
supra,  that,  under  these  circumstances,  the  respondent  shall  be  ad- 
judged to  have  "resumed  work?"    If  it  be  insisted  that  the  instruc- 


RESUMPTION   OF    WORK. 


399 


tion  by  the  clauses,  "in  good  faith,  honestly  and  in  fact,  resume 
proper  work,"  was  designed  to  lay  down  the  law  in  accordance  with 
these  views,  then  the  verdict  is  contrary  thereto.  It  is  therefore 
adjudged  that  the  judgment  be  reversed,  and  the  case  be  remanded, 
with  directions  to  grant  the  motion  for  a  new  trial. 


OSCAMP  V.  CRYSTAL  RIVER  MIN.  CO. 

(See  ante,  p.  369,  for  a  report  of  the  case.) 

JUSTICE  MIN.  CO.  V.  BARCLAY  et  al. 

1897.     Circuit  Court,  D.  Nevada.     82  Fed.  554. 

This  is  a  suit  in  equity  by  the  Justice  Mining  Company  against 
John  Barclay  and  others  to  enjoin  the  working  of  a  certain  mine, 
situated  in  the  Gold  Hill  mining  district,  in  Storey  county,  Nev. 

Hawley,  District  Judge. ^*^ — This  is  a  suit  in  equity,  brought  by 
complainant,  to  enjoin  the  respondents  from  mining,  extracting,  or 
removing  any  quartz  rock,  earth,  or  ore  from  certain  mining  ground 
claimed  by  complainant,  situate  in  Gold  Hill  mining  district.  Storey 
county,  Nev.  The  complainant  is  the  owner  of  the  Justice  patented 
ground  and  lode,  and  of  the  Woodville  patented  ground  and  lode, 
the  surface  boundaries  of  which  are  delineated  upon  the  following 
diagram. 


*     *     * 


'°  Parts  of  the  opinion  are  omitted. 


400  LABOR,    IMPROVEMENTS    AND   ABANDONMENT. 

The  respondents,  on  January  i,  1896,  located  certain  mining 
ground,  described  in  the  answer  as  follows : 

"Beginning  at  post  No.  1  on  the  east  side  line  of  the  mining  claim  and 
premises  first  described  in  plaintiff's  bill  of  complaint,  being  what  was  for- 
merly known  as  the  Justice  Independent  claim,  U.  S.  survey  No.  48,  but  now 
known  as  the  Justice  claim,  from  which  post  No.  7  of  the  Justice  Independent 
claim  bears  south,  47°  east,  307.1  feet  distant ;  thence,  for  the  first  course, 
north,  41°  west,  636.9  feet,  to  post  No.  2,  identical  with  post  No.  6  of  the 
U.  S.  survey  No.  48;  thence,  second  course,  north,  49°  east,  382.7  feet,  to  post 
marked  No.  3 ;  thence,  third  course,  along  the  west  line  of  said  Woodville 
claim,  south,  10°  east,  743  feet,  to  the  place  of  beginning, — which  said  last 
described  mining  claim  and  premises  is  known  as  and  called  the  Hills  Gold 
and  Silver  Quartz  ]Mine." 

This  ground  is  situate  within  the  triangle  shown  on  the  diagram 
between  the  Justice  and  Woodville  side  lines.    *    *    * 

In  support  of  complainant's  right  to  recover  herein,  it  is  alleged 
in  the  bill  that  complainant  is  the  owner  of,  in  possession  of,  and  en- 
titled to  the  possession  of,  the  mining  ground,  claim,  real  estate,  and 
premises  lying  between  the  easterly  side  line  of  the  Justice  patented 
ground  and  the  westerly  side  line  of  the  Woodville  patented  ground, 
together  with  all  the  veins  of  gold  and  silver  bearing  quartz  rock, 
the  apexes  of  which  are  within  the  surface  boundaries  of  said  claim, 
with  the  right  to  follow  such  veins  or  lodes  to  any  depth ;  that  while 
the  respondents  Charles  Benham  and  Thomas  Bell  were  in  possession 
of  and  working  on  the  lode  within  the  Justice  ground,  as  tenants  of 
complainant,  the  other  respondents  herein,  on  January  i,  1896,  con- 
spired with  them,  and  made  a  pretended  location  of  a  portion  of 
said  ground  between  the  Justice  and  Woodville  patented  locations  in 
the  name  of  W.  P.  Hills,"but  for  the  use  and  benefit  of  the  other  re- 
spondents ;  that,  wdien  said  location  was  made  by  W.  P.  Hills,  the 
respondents  Benham  and  Bell  were  in  actual  possession  of  said 
ground  and  vein  as  tenants  of  complainant,  and  were  working  the 
same  for  the  purpose  of  complying  with  the  laws  of  congress  with 
reference  to  holding,  possessing,  and  working  mining  claims;  and 
that  complainant  had  every  year  up  to  January  i,  1896,  done  and 
performed  more  than  $100  worth  of  work  for  the  purpose  of  holding 
and  possessing  said  claim,  in  accordance  and  compliance  with  the 
provisions  of  the  act  of  congress  in  regard  thereto.  The  title  of 
complainant  to  the  particular  piece  of  ground  in  controversy,  inde- 
pendent of  any  rights  it  may  have  by  virtue  of  its  ownership  in  the 
Justice  and  Woodville  patented  ground,  is  derived  from  the  mining 
location  made  by  A.  Cummings  on  the  19th  of  March,  1875,  which 
included  in  its  description  all  the  ground  embraced  in  the  location 
of  the  Hills  Gold  and  Silver  Quartz  Mine.  This  mining  ground  was 
on  April  12,  1875,  conveyed  by  deed  to  the  Woodville  Con.  S.  M, 
Company.     In  July,  1880,  the  complainant  acquired  title  to  all  the 


RESUMPTION    OF   WORK.  4OI 

mining  property  of  the  Woodville  Con.  S.  M.  Company,  including, 
among  others,  the  Cummings  claim.    *    *    * 

The  objection  urged  against  this  location  is  that  no  evidence  was 
offered  that  A.  Cummings  ever  made  the  location,  posted  the  notice, 
or  put  any  stakes  upon  the  ground,  or  that  he  or  his  grantees  or 
predecessors  in  interest  ever  complied  with  the  law  requiring  annual 
assessment  work  to  be  done  upon  the  location ;  that  the  ground  was 
abandoned ;  that,  if  not  abandoned,  it  was  forfeited ;  that  it  was 
claimed  by  other  parties  who  had  regularly  located  the  ground  prior 
to  1895,  but  who  failed  to  do  the  assessment  work  in  1895  J  ^^^^  that 
the  ground  was  therefore  subject  to  relocation  on  January  i,  1896, 
when  the  Hills  location  was  made.    *    *    * 

It  is  a  well-settled  principle  of  law  that  abandonment  of  property 
is  always  a  question  of  intention.  It  is  a  voluntary  act.  The  prop- 
erty in  question  was  never  abandoned  by  complainant.  It  always 
asserted  a  claim  to  the  ground.  There  is  no  evidence  in  the  record 
which  indicates  any  intention  on  its  part  to  give  up  its  right  to  this 
particular  ground.  Forfeiture  may  occur  by  failure  to  comply  with 
some  positive  requirement  of  the  statute,  or  of  the  mining  rules  or 
regulations,  if  the  statute  or  rules  provide  that  such  failure  shall 
work  a  forfeiture  of  the  claim.  Forfeitures,  however,  are  not,  as  a 
general  rule,  favored  by  the  law.  A  forfeiture  of  a  mining  claim 
cannot  be  established  except  upon  clear  and  convincing  proof  of  the 
failure  of  the  owners  of  the  claim  to  have  the  work  done  or  improve- 
ments made  to  the  amount  required  by  law.  Hammer  v.  Milling  Co., 
130  U.  S.  291,  301,  9  Sup.  Ct.  548.  Conceding,  for  the  purpose  of 
this  opinion,  that  complainant  had  failed  to  do  any  assessment  work 
upon  the  ground,  and  that  it  was,  prior  to  January  i,  1895,  subject 
to  be  relocated,  still  the  respondents  are  not  in  a  position  to  take 
any  advantage  of  such  failure  on  the  part  of  the  complainant  to  do 
the  assessment  work.  The  evidence  is  direct  and  positive  that  the 
object  of  the  lease,  as  executed  by  complainant,  was  for  the  express 
purpose  of  performing  enough  work  to  hold  the  Cummings  and  the 
other  claims  lying  outside  of  the  patented  lines  of  the  Justice  and 
Woodville.  This  testimony,  although  criticised  and  questioned  by 
respondents'  counsel,  is  undisputed.  If  true,  it  was  sufficient  to  pre- 
vent the  respondents  from  making  any  valid  location  in  January, 
1896.  The  assessment  work  by  complainant  in  1895,  prior  to  the 
relocation  of  the  grounds  by  Hills,  on  behalf  of  the  respondents,  and 
before  any  intervening  rights  by  other  parties  had  been  acquired, 
revived  its  rights  under  the  Cummings  location  ;  and  the  ground  em- 
braced in  the  Cummings  claim  could  not  therefore  be  considered  as 
forfeited  at  the  time  Hills  entered  upon  the  ground,  and  made  the 
location  of  the  Hills  Gold  and  Silver  Quartz  Mine. 

The  language  of  section  2324,  Rev.  St.,  is  clear,  plain,  and  explicit 


26 — Mining  Law 


402  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

upon  this  point.    After  stating  the  amount  of  work  that  must  be  an- 
nually performed  on  each  claim,  it  reads  as  follows : 

"But,  where  such  claims  are  held  in  common,  such  expenditure  may  be  made 
upon  any  one  claim;  and,  upon  a  failure  to  comply  with  these  conditions,  the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to  relocation  in 
the  same  manner  as  if  no  location  of  the  same  had  ever  been  made,  provided 
that  the  original  locators,  their  heirs,  assigns,  or  legal  representatives,  have 
not  resumed  work  upon  the  claim  after  failure,  and  before  such  location." 

North  Noonday  Min.  Co.  v.  Orient  Min.  Co.,  i  Fed.  522,  539; 
Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.,  11  Fed.  668,  681  ;  Lakin 
V.  Mining  Co.,  25  Fed.  337,  343 ;  Mining  Co.  v.  Deferrari,  62  Cal. 
160,  163;  Gregory  v.  Pershbaker,  73  Cal.  109,  119,  14  Pac.  401; 
Pharis  v.  Muldoon,  75  Cal.  284,  17  Pac.  70;  Belk  v.  Meagher,  104 
U.  S.  279,  282.    *    *    * 

The  fact  that  the  "Leermo"  and  "Quinn"  locations  had  been  made 
within  the  surface  boundaries  of  the  Cummings  prior  to  1895  did  not 
defeat  complainant's  title  to  the  Cummings.  If  either  of  said  loca- 
tions were  valid,  the  respondents  would  have  no  standing  in  court. 
They  do  not  claim  any  rights  under  either  of  these  locations.  The 
proof  is  that  both  locations  were  either  forfeited  or  abandoned.  *  *  * 
The  Quinn  location  was  made  in  July,  1891.     *     *     * 

It  is  shown,  however,  that  the  complainant  performed  the  neces- 
sary amount  of  work  in  1895.  The  presence  of  the  watchman  shows, 
or  tends  to  show,  the  actual  possession  of  the  ground  by  complain- 
ant, and  that  such  possession  was  open  and  notorious. 

These  results,  as  to  the  acts  of  the  complainant  and  its  good  faith 
with  reference  to  its  ownership  of  the  ground  embraced  in  the  Cum- 
mings claim,  taken  in  connection  with  all  the  circumstances  under 
which  respondents  Bell  and  Benhain  took  the  lease,  coupled,  as  it 
must  be,  with  the  further  condition  that  while  working  under  the 
lease  as  tenants  of  complainant,  they  discovered  the  ore  body  in  dis- 
pute, lead  to  the  conclusion  that  complainant  has  established  a  better 
right  and  superior  title  to  the  mining  ground  in  question  than  the 
respondents. 

But  the  judgment  in  this  case  need  not  be  based  solely  upon  this 
ground.  The  same  result  would  probably  be  reached  upon  the 
theory  that  there  is  but  one  vein  or  lode  within  the  Justice  or  Wood- 
ville  patented  lines,  and  that  the  ore  extracted  by  the  respondents 
was  from  that  lode.  But,  be  that  as  it  may,  after  a  careful  review 
and  consideration  of  all  the  evidence,  I  am  clearly  of  opinion  that 
the  decided  weight  and  preponderance  of  evidence  upon  the  facts, 
shown  by  the  developments  as  made  in  the  Steele  shaft  and  the 
Hills  or  Barclay  shaft,  with  the  different  levels,  tunnels,  drifts,  and 
inclines  connected  therewith,  is  to  the  effect  that  the  ore  body,  seam, 
or  vein  disclosed  in  respondents'  workings  is  a  part  of,  and  is  con- 
nected in  vein  matter  with,  the  Justice  lode,  having  its  apex  within 


RESUMPTION    OF    WORK.  4O3 

the  patented  lines  of  the  Justice.   Let  a  decree  be  drawn  in  favor  of 
complainant,  in  accordance  with  the  views  herein  expressed.^''^ 


FEE  ET  AL.  V.  DURHAM. 

1903.     Circuit  Court  of  Appeals,  Eighth  Circuit. 

57  C.  C.  A.  584,  121  Fed.  488. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Arkansas. 

The  High  Peak  placer  mining  claim  was  duly  located  January  1,  1898, 
by  the  grantors  of  the  defendant  in  error.  On  the  26th  of  December,  1899, 
the  original  locators  of  the  claim  commenced  to  do  the  assessment  work 
for  that  year.  Laborers,  provided  with  suitable  tools  for  the  purpose,  worked 
continuously  during  the  usual  working  hours  of  each  day  from  the  26th  of 
December  up  to  Saturday  evening,  December  30th,  when  they  left  off  work, 
leaving  their  tools  on  the  ground  intending  to  resume  work  Monday  morn- 
ing, which  they  did,  and  thereafter  prosecuted  it  diligently  until  largely 
more  than  the  assessment  work  required  by  law  had  been  done.  Acting  on 
the  assumption  that  the  original  location  of  the  claim  was  forfeited,  and 
that  it  was  open  to  relocation,  because  the  full  amount  of  the  assessment 
work  for  the  year  1899  had  not  been  done  before  the  expiration  of  the  year, 
the  plaintiffs  in  error,  a  few  minutes  past  midnight  on  the  last  day  of  De- 
cember, 1899,  entered  upon  and  relocated  the  claim,  and  afterwards  brought 
this  action  of  ejectment  to  recover  possession  thereof  from  the  defendant 
in  error.  A  jury  trial  resulted  in  a  verdict  and  judgment  for  the  detendant, 
and  the  plaintiffs  sued  out  this  writ  of  error.     *     *     * 

Before  Caldwell,  Sanborn,  and  Thayer,  Circuit  Judges. 

Caldwell,  Circuit  Judge.^''— The  defendant's  grantors  were  m 
the  actual  possession  of  the  claim,  actively  engaged  in  domg  the 
annual  assessment  work  thereon,  when  the  plaintiffs  entered  upon 
the  claim  and  made  their  location.  The  entry  and  location,  under 
these  circumstances,  was  a  trespass,  and  no  rights  were  acquired 

^a  "There  is  a  dictum  in  Klopenstine  v.  Hays,  20  Utah  45.  57  Pac.  712,  that 
if  work  be  resumed  by  the  original  owner  after  failure  to  do  work  for  a  cer- 
tain year  and  after  a  valid  relocation  by  a  second  party  who  also  failed  to 
keep  up  his  work,  that  such  resumption  by  the  original  owner  revives  the 
original  title.  It  may  be  that  in  such  circumstances  the  original  owner  may 
not  be  required  to  go  through  the  form  of  a  new  location  and  record 
(although  we  would  advise  it)  but  that  his  title  would  go  back  by  relation 
beyond  the  point  of  time  when  a  valid  possessory  title  to  the  same  ground 
existed  in  a  third  party  is  an  extremely  doubtful  proposition.  :\lornson  s 
Mining  Rights,  14  ed.,  125.  .       ,• 

''  The  statement  of  facts  is  abbreviated  and  parts  of  the  dissenting  opinion 
are  omitted. 


404  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

thereby.  The  Lebanon  Mining  Co.  of  New  York  v.  The  Con- 
solidated Republican  Mining  Co.,  6  Colo.  371  ;  Weese  v.  Barker,  7 
Colo.  178,  2  Pac.  919;  Belk  v.  Meagher,  104  U.  S.  279,  26  L.  Ed. 
735.  Inchoate  rights  to  the  public  lands  cannot  in  any  case  be  ac- 
quired by  trespass  or  by  violence.  An  entry  upon  the  prior  posses- 
sion of  another  is  a  trespass,  and  tends  to  provoke  violence,  homi- 
cides, and  other  crimes,  and  one  making  such  an  entry  gains  nothing 
by  it.    Atherton  v.  Fowler,  96  U.  S.  513,  24  L.  Ed.  732. 

The  original  locators  must  be  held  to  have  been  in  the  actual  pos- 
session of  the  claim  at  the  time  the  plaintiffs  made  their  location. 
The  suspension  of  work  Saturday  night,  intending  to  resume  it  Mon- 
day morning,  and  leaving  their  tools  on  the  ground  for  that  purpose, 
was  not,  in  any  sense,  an  abandonment  of  their  possession  for  the 
time  between  Saturday  night  and  Monday  morning.  In  contempla- 
tion of  law,  their  possession  was  as  complete  and  actual  during  that 
time  as  if  they  had  remained  at  work  during  the  night  and  on  the 
Lord's  Day.  They  were  not  required  to  work  during  the  night  or 
on  the  Lord's  Day  in  order  to  maintain  their  possession  and  make 
their  assessment  work  continuous.  Their  possession  was  attested 
and  protected  by  their  work  and  the  presence  of  their  tools.  They 
could  not  lawfully  work  on  the  Lord's  Day  if  they  had  desired  to  do 
so,  for  the  law  of  the  state  forbids  labor  on  that  day  under  a  penalty. 
Sand.  &  H.  Dig.  §  1887.  Resting  from  their  work  from  Saturday 
night  until  Monday  morning  was  no  more  an  abandonment  of  their 
work  or  possession  than  the  cessation  of  work  to  eat  their  midday 
meal  would  be. 

Under  the  act  of  Congress  the  failure  to  do  the  required  assess- 
ment work  within  the  year  does  not  absolutely  and  irrevocably  render 
the  claim  subject  to  relocation.  It  has  this  qualification:  "Provided 
that  the  original  locators  *  *  *  have  not  resumed  work  after 
failure  and  before  such  location."  Referring  to  this  statute  the  Su- 
preme Court  of  the  United  States  in  Belk  v.  Meagher,  104  U.  S.  279, 
26  L.  Ed.  735,  said : 

"Such  being  the  law,  it  seems  to  us  dear  that  if  work  is  renewed  on  a 
claim  after  it  has  once  been  open  to  relocation,  but  before  a  relocation  is 
actually  made,  the  rights  of  the  original  owners  stand  as  they  would  if  there 
had  been  no  failure  to  comply  with  this  condition  of  the  act.  *  *  *  Min- 
ing claims  are  not  open  to  relocation  until  the  rights  of  the  former  locator 
have  come  to  an  end.  A  relocator  seeks  to  avail  himself  of  mineral  in  the 
public  lands  which  another  has  discovered.  This  he  cannot  do  until  the  dis- 
coverer has  in  law  abandoned  his  claim  and  left  the  property  open  for  an- 
other to  take  up." 

The  original  locators  in  this  case  had  not  abandoned  their  claim, 
but  were  actually  and  continuously  at  work  from  the  26th  of  Decem- 
ber until  an  early  day  in  January,  when  they  had  done  $500  worth  of 
work.  There  was  no  suspension  of  the  work  during  this  time,  and 
there  was  no  period  of  time  during  which  the  plaintiffs  could  enter 


RESUMPTION    OF    WORK.  405 

and  make  a  valid  location.  The  continuity  of  the  work  and  possession 
was  not  broken  by  the  cessation  of  labor  at  night  and  on  the  Lord's 
Day.  It  must  be  conceded  that  if  the  original  locators  had  "resumed 
work"  after  the  clock  struck  12  on  Saturday  night,  December  31st, 
that  the  plaintiffs'  location  would  have  been  invalid.  We  think  upon 
the  facts  in  this  case,  for  all  legal  purposes,  the  original  locators  must 
be  held  to  have  been  prosecuting  the  work  for  the  whole  of  that 
night,  and  that  the  plaintiffs  could  not  rightfully  enter  upon  the 
claim  and  make  a  valid  location  between  midnight  and  the  usual  hour 
of  resuming  work  on  Monday  morning.  Pharis  v.  Muldoon  (Cal.) 
17  Pac.  70;  Belcher  Consolidated  Gold  Mining  Co.  v.  Deferrari,  62 
Cal.  160. 

The  instructions  of  the  court  are  in  harmony  with  the  views  we 
have  expressed.     The  judgment  of  the  Circuit  Court  is  affirmed. 

Sanborn,  Circuit  Judge  (dissenting). —    *    *    * 

'We  find  that  in  order  to  sustain  the  validity  of  the  mining  claim  of 
the  original  locators  they  were  required  to  perform  work  of  the  value 
of  $100  on  or  before  midnight  of  December  31,  1899;  that  they  per- 
formed work  of  the  value  of  only  $15  prior  to  that  time;  that  they 
were  not  at  work  upon  the  claim  when  that  day  expired ;  that  the 
statute  declared  that  it  then  became  "open  to  relocation  in  the  same 
manner  as  if  no  location  had  ever  been  made" ;  that  between  that 
time  and  i  a.  m.  of  January  i,  1900,  the  plaintiffs  relocated  the  claim 
in  strict  conformity  to  the  provisions  of  this  statute ;  and  that  the 
original  locators  had  not  then  resumed  and  did  not  resume  work 
upon  it  until  7  o'clock  on  that  morning.  These  facts  seem  to  me 
to  establish  in  the  plaintiffs  a  perfect  right  to  this  mining  claim  under 
the  statute  which  has  been  quoted. 

It  is  said  in  the  opinion  of  the  majority  that  this  relocation  was 
ineffectual  and  void  because  the  mining  claim  was  in  the  possession 
of  the  original  locators,  because  its  relocation  was  a  trespass,  and 
therefore  no  rights  in  favor  of  the  plaintiffs  could  be  founded 
thereon ;  and  Lebanon  Min.  Co.  v.  Consolidated  Rep.  Min.  Co.,  6 
Colo.  371,  Weese  v.  Barker,  7  Colo.  178,  2  Pac.  919,  Atherton  v.  Fow- 
ler, 96  U.  S.  513,  24  L.  Ed.  732,  and  Belk  v.  Meagher,  104  U.  S.  279, 
26  L.  Ed.  735,  are  cited  in  support  of  this  position.  These  author- 
ities, with  the  exception  of  Belk  v.  Meagher,  which  will  be  subse- 
quently discussed,  are  not  applicable  to  the  question  at  issue  in  this 
case.  They  go  no  farther  than  to  establish  these  two  propositions : 
(i)  That  a  location  cannot  lawfully  be  made  upon  public  land  in  the 
possession  of  another  who  holds  it  under  color  of  title  to  a  prior  and 
superior  inchoate  right  to  it  (Lebanon  Min.  Co.  v.  Consolidated 
Rep.  Min.  Co.,  6  Colo.  371,  379;  Weese  v.  Barker,  7  Colo.  178,  2  Pac. 
919)  ;  and  (2)  that  a  right  to  a  mining  claim  or  to  any  other  title 
cannot  be  lawfully  initiated  by  a  forcible,  as  distinguished  from  a 
peaceable,  entry  (Atherton  v.  Fowler,  96  U.  S.  513,  24  L.  Ed.  732). 
The  case  at  bar  does  not  fall  under  either  of  these  propositions.    In 


406  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

the  first  place  the  original  locators  had  no  title  or  color  of  title  to  a 
superior  or  to  any  inchoate  right  to  this  claim  when  the  plaintiffs 
relocated  it.  They,  therefore,  had  no  right  which  drew  to  them  the 
lawful  possession  as  against  the  plaintiffs,  and  they  were  not  in  the 
actual  possession  of  it.  The  inchoate  right  of  the  original  locators 
had  ceased  at  midnight  of  December  31,  1899.  Their  possession,  as 
against  qualified  locators,  had  also  ceased,  because  the  statute  de- 
clared that  the  moment  they  had  failed  to  do  the  work  within  the 
year  the  land  was  open  to  relocation,  notwithstanding  their  posses- 
sion, in  the  same  manner  as  if  no  location  of  the  same  had  ever 
been  made.  The  only  right  remaining  in  the  original  locators  was  the 
right  to  resume  before  the  plaintiffs  relocated  the  land,  and  this  was 
a  mere  floating  right,  subject  to  the  earlier  exercise  of  the  right  of 
the  plaintiffs.  The  plaintiffs  first  exercised  their  right,  and  thereby 
secured  the  superior  claim.  In  the  second  place,  the  entry  of  the 
plaintiffs  was  peaceable,  not  forcible,  so  that  it  does  not  fall  under 
the  rule  in  Atherton  v.  Fowler,  which  was  made  for  the  express 
purpose  of  avoiding  violence  and  personal  injury  in  the  assertion  of 
conflicting  claims. 

Nor  does  the  fact  that  the  plaintiffs  relocated  this  claim  between 
12  o'clock  and  i  o'clock  at  night  militate  in  any  way  against  its  valid- 
ity. Congress  in  its  wisdom  provided  that  the  man  who  first  after 
midnight  of  December  31st  in  each  year  relocated  a  forfeited  claim 
should  have  the  prior  right  to  it  when  they  enacted  that  the  year 
within  which  the  work  should  be  done  should  commence  on  the  ist 
day  of  January  succeeding  the  date  of  location.  U.  S.  Comp.  St. 
1901,  §  2324.  They  might  have  provided  that  this  year  should  com- 
mence at  the  hour  when  courts  generally  open,  at  10  o'clock  in  the 
forenoon,  and  then  the  relocations  would  have  been  made  between 
10  and  II  in  the  morning.  Under  the  act  as  Congress  saw  fit  to 
enact  it,  the  custom  and  practice  of  miners  has  been,  is,  and  naturally 
will  be,  to  make  most  of  their  relocations  between  12  and  i  at  night 
(Lindley  on  Mines,  §  652,  p.  823),  because  only  in  this  way  can  they 
be  sure  that  the  exercise  of  their  rights  will  precede  the  exercise  of 
similar  rights  by  others.  In  this  state  of  the  law  and  the  practice 
of  miners  it  is  not  perceived  that  later  relocations  would  be  either 
more  righteous  or  more  secure  than  those  made  immediately  after 
the  expiration  of  the  year  fixed  by  the  act  of  Congress. 

It  is  believed  that  under  the  provisions  of  the  act  of  Congress  un- 
der consideration  the  original  locators  of  this  claim  had  no  inchoate 
right  to  it  and  no  possession  of  it  when  the  plaintiffs  relocated  it ; 
that  the  plaintiffs'  peaceable  entry  for  that  purpose  was  not  a  tres- 
pass ;  that  their  relocation  established  in  them  a  perfect  right  to  this 
mine  superior  to  that  of  the  original  locators  and  that  these  propo- 
sitions are  sustained  by  the  act  of  Congress  itself,  and  by  the  de- 
cisions of  the  courts,  which  have  considered  and  decided  the  ques- 
tions here  presented.    U.  S.  Comp.  St.  1901,  §§  2322,  2324;  Belk  v. 


RESUMPTION    OF    WORK.  407 

Meagher,  104  U.  S.  279,  287,  26  L.  Ed.  735 ;  Du  Prat  v.  James,  65 
Cal.  555,  557,  4  Pac.  562 ;  Russell  v.  Brosseau,  65  Cal.  605,  608,  609, 
4  Pac.  643;  Kramer  v.  Settle,  i  Idaho,  485,  491,  492;  Renshaw  v. 
Switzer  (Mont.)  13  Pac.  127;  Morgan  v.  Tillottson,  73  Cal.  520,  15 
Pac.  88. 

Section  2322,  U.  S.  Comp.  St.  1901,  under  which  the  original  loca- 
tors held  this  claim,  provided  that  "the  locators  of  all  mining  loca- 
tions *  *  *  so  long  as  they  comply  with  the  laws  of  the  United 
States  *  *  *  shall  have  the  exclusive  right  of  possession  and 
enjoyment"'  of  their  respective  claims,  and  this  provision  was  equiva- 
lent to  a  declaration  that  they  shall  not  have  the  right  to  the  posses- 
sion and  enjoyment  of  the  claims  when  they  cease  to  comply  with  the 
laws  of  the  United  States.  When  the  plaintiffs  made  their  relocation 
the  original  locators  had  ceased  to  comply  with  these  laws,  they  had 
not  performed  the  work  which  those  laws  required  them  to  do  during 
the  year  1899  as  a  condition  precedent  to  the  continuance  of  their 
right,  and  they  had  no  right  either  to  the  claim  or  to  the  possession 
of  it.  Section  2324  makes  this  conclusion  clear,  for  it  provides  that 
upon  a  failure  to  perform  this  work  within  the  year  the  claim  shall 
be  "open  to  relocation  in  the  same  manner  as  if  no  location  of  the 
same  had  ever  been  made,"  unless  the  original  locators  resume  work 
before  relocation  is  made.  When  the  plaintiffs  relocated  the  claim 
the  original  locators  had  completely  failed  to  do  the  required  work  of 
the  year  1899,  and  they  had  not  resumed  work  upon  this  claim.  They 
were  not  in  the  actual  occupation  of  it.  The  entry  of  the  plaintiffs 
upon  it  was  peaceable,  necessary  to  the  exercise  of  the  right  given 
them  by  the  statute,  and  it  was  made  for  the  express  purpose  of  en- 
forcing that  right.  This  entry,  this  relocation,  could  not  have  been 
a  trespass,  for  a  trespass  is  an  unlawful  interference  with  the  right 
of  another,  and  this  relocation  did  not  impinge  upon  any  of  the 
rights  of  the  original  locators  or  of  any  other  parties.  The  only 
right  they  had  was  the  right  to  resume  work  before  the  plaintiffs  re- 
located the  claim.  The  right  to  resume  and  the  right  to  relocate 
vested  in  the  respective  parties  the  instant  the  31st  day  of  December 
passed.  Congress  granted  the  right  to  the  land  to  the  parties  who 
first  exercised  their  right.  The  plaintiffs  exercised  their  right  to 
relocate  before  the  original  locators  exercised  their  right  to  resume 
and  they  thereby  acquired  the  better  right  to  the  property.  Their 
acts  of  entry  and  relocation  did  not  constitute  a  trespass,  because 
they  violated  none  of  the  rights  of  the  original  locators,  but  simply 
asserted  and  exercised  a  right  Congress  had  expressly  granted  to 
them.  These  views  are  not  without  support  in  repeated  decisions 
of  the  courts.    *    *    * 

The  act  of  Congress  and  the  authorities  under  it  seem  to  me  to  be 
clear  and  conclusive  that  where  the  work  is  not  done  within  the 
year  the  right  of  the  locator  ceases.  Nothing  but  the  required  work 
will  preserve  it.    Neither  idle  tools  lying  upon  the  ground  nor  good 


408  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

intentions  can,  in  my  opinion,  be  substituted  for  the  work  required, 
because  the  statute  excludes  them  when  it  expressly  limits  the  con- 
dition precedent  to  the  performance  of  the  work  within  the  year. 
When  the  failure  to  do  that  work  has  occurred,  nothing  but  a  re- 
sumption of  the  work  before  a  relocation  will,  in  my  opinion,  sustain 
the  original  location.  Tools  upon  the  ground,  intention  to  resume, 
resumption  after  relocation,  are  each  and  all  alike  ineffectual  to  re- 
establish the  original  location,  because  the  act  of  Congress  expressly 
excludes  them  when  it  declares  that  resumption  of  the  work  before 
the  relocation,  and  that  alone,  can  re-establish  the  original  location. 

For  these  reasons,  in  my  opinion  the  judgment  below  ought  to  be 
reversed,  and  a  new  trial  of  this  case  ought  to  be  granted. 


THORNTON  et  al.  v.  KAUFMAN. 
1910.     Supreme  Court  of  Montana.     40  Mont.  282,  106  Pac.  361. 

Action  by  W.  D.  Thornton,  John  Hopkins,  and  Edward  Shone 
against  Louis  Kaufman.  Plaintiffs  had  judgment,  from  which,  and 
an  order  denying  new  trial,  defendant  appeals.    Reversed. 

Hollo  WAY,  J.^* — *     '''     '^ 

The  plaintiffs  rely  upon  a  forfeiture  by  the  defendant  of  his  right 
to  the  disputed  ground  under  his  Little  Spring  location  by  reason 
of  his  failure  to  do  the  necessary  annual  work  or  improvement 
during  1897.  The  trial  court  found  that  defendant  forfeited  his 
right  to  the  ground  in  dispute  by  failing  to  do  the  necessary  amount 
of  work  or  improvement  during  1897,  and  that  defendant  did  not 
resume  work  on  that  claim  in  good  faith  prior  to  plaintiff's  location 
of  the  disputed  ground  as  a  part  of  the  vigilant  claim.  The  evidence 
shows  without  substantial  dispute  that  during  1897  the  defendant 
did  not  do  more  than  $30  worth  of  work  or  improvement  on  the 
Little  Spring  claim,  so  that  the  ground  was  open  to  relocation  on 
January  i,  1898,  unless  the  defendant  in  good  faith  resumed  work 
upon  his  claim  before  the  ground  was  relocated.  Section  2324,  Rev. 
St.  (U.  S.  Comp.  St.  1901,  p.  1426).  By  stipulation  of  the  parties 
at  the  trial  it  was  agreed  that  during  the  month  of  December,  1898, 
the  defendant  did  $100  worth  of  work  upon  the  Little  Spring  claim, 
and  that  he  did  a  like  amount  every  year  thereafter  up  to  the  time 
of  the  trial  in  1908.  The  only  attack  made  upon  defendant's  Little 
Spring  claim  is  under  the  plea  of  forfeiture  above. 

It  would  seem  that  the  trial  court  must  have  held  that  the  original 
declaratory  statement  of  the  Vigilant  claim  was  sufficient,  or  that,  if 

^*  Part  of  the  opinion  and  the  concurring  opinion  of  Smith,  J.,  are  omitted. 


RESUMPTION    OF    WORK.  4O9 

an  adverse  claim  was  initiated  before  the  defendant  resumed  work  in 
good  faith,  such  initiative  claim  would  take  precedence  over  the  prior 
located  claim  upon  which  the  necessary  annual  labor  had  not  been 
done.  Neither  the  original  declaratory  statement  of  the  vigilant 
claim  which  was  filed  in  1898,  nor  the  first  amended  declaratory  state- 
ment filed  in  1901,  complied,  even  substantially,  with  the  requirements 
of  the  statute  then  in  force.  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac, 
153  ;  Dolan  v.  Passmore,  34  Mont.  277,  85  Pac.  1034.  The  second 
amended  declaratory  statement,  which  apparently  meets  the  require- 
ments of  the  law  fully,  was  not  filed  until  1907.  But  the  initiation  of 
an  adverse  claim  is  not  sufficient  to  prevent  the  original  locator  from 
resuming  work  and  saving  his  claim.  The  only  injunction  laid  upon 
him  by  section  2324  U.  S.  Rev.  St.,  above,  is  that  he  shall  resume 
work  upon  his  claim  in  good  faith  before  a  location  thereof  is  made 
by  some  one  else.  The  location  of  a  mining  claim  does  not  consist 
alone  of  discovery  and  posting  notice  of  location.  "The  law  con- 
templates that  the  location  of  a  mining  claim  shall  consist  of  a  num- 
ber of  distinct  acts  which  are  independent  of  each  other.  The  last 
that  may  be  done  does  not  relate  back  to  the  first,  and  all  must  be  per- 
formed before  a  legal  location  exists."  Gonu  v.  Russell,  3  Mont. 
358 ;  McKay  v.  Mcbougall,  25  Mont.  258,  64  Pac.  669,  87  Am.  St. 
Rep.  395.  In  Butte  Con.  Min.  Co.  v.  Barker,  35  Mont.  327,  89  Pac. 
302,  this  court  said :  "In  order  to  make  a  valid  quartz  lode  mining 
location,  our  Political  Code  (sections  3610,  361 1,  and  3612)  *  *  * 
requires  (i)  the  discovery  of  a  vein  or  lode;  (2)  the  posting  of  a 
notice  of  location  at  the  point  of  discovery  containing  the  matters 
designated  by  section  3610;  (3)  the  marking  of  the  boundaries  on 
the  ground,  and  the  doing  of  certain  development  work,  designated 
in  section  361 1  ;  and  (4)  the  filing  for  record  of  a  declaratory  state- 
ment containing  the  matters  mentioned  in  section  3612."  Since  the 
plaintiffs  did  not  complete  their  location  until  the  filing  of  the  second 
amend>ed  declaratory  statement  in  1907,  it  would  seem  that  the 
court's  finding  that  defendant  forfeited  his  claim  must  be  erroneous, 
for,  before  that  date,  the  defendant  had  resumed  work  on  the  Little 
Spring  claim,  and  had  expended  in  work  and  improvements  some 
$900  or  $1,000,  and  this  apparently  in  perfect  good  faith. 

But  it  is  suggested  that  in  order  for  defendant  to  comply  with 
section  2324,  Rev.  St.  U.  S.,  above,  it  was  necessary  for  him  to 
do  the  work  delinquent  in  1897,  but  with  this  we  do  not  agree.  The 
government  or  a  subsequent  locator  is  the  only  one  who  can  com- 
plain of  a  failure  on  the  part  of  a  locator  to  do  the  necessary  annual 
work,  and  the  subsequent  locator  is  not  in  a  position  to  make  com- 
plaint until  he  has  completed  a  valid  location,  and,  if  prior  to  the 
completion  of  such  valid  subsequent  location  the  original  locator  has 
resumed  work  upon  his  claim  in  good  faith,  his  previous  delinquency 
is  not  a  matter  of  consequence.  Temescal  Oil  Min.  &  D.  Co.  v. 
Salcido,  137  Cal.  211,  69  Pac.  loio.    Forfeitures  are  so  odious  to  the 


4IO  LABOR,    IMPROVEMENTS    AND    ABANDONMENT. 

law  that  the  rule  is  quite  uniform  that  every  reasonable  doubt  will 
be  resolved  in  favor  of  the  validity  of  the  mining  claim  as  against  the 
assertion  of  a  forfeiture.  2^  Cyc.  600.  Viewed  in  the  light  of  this 
rule,  we  think  the  defendant  showed  such  a  resumption  of  work  on 
his  claim  before  plaintififs'  location  was  perfected,  as  saved  it  from 
the  charge  of  being  forfeited. 

The  judgment  and  order  are  reversed,  and  the  cause  is  remanded 
to  the  district  court,  with  direction  to  enter  judgment  for  the  de- 
fendant for  the  territory  in  dispute. 

Reversed  and  remanded. ^^ 

°'  For  a  criticism  of  the  doctrine  of  this  case,  see  Costigan,  Mining  Law, 
290-291,  318. 

It  has  recently  been  held  that  under  the  Alaska  statute  resumption  of  work 
will  not  prevent  a  relocation.  Thatcher  v.  Brown,  190  Fed.  708.    But  query? 


CHAPTER  VII. 

SUB-SURFACE    RIGHTS. 

FEDERAL  STATUTES. 

Sec.  2320.  Alining  claims  upon  veins  or  lodes  of  quartz  or  other  rock 
in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable 
deposits,  heretofore  located,  shall  be  governed  as  to  length  along  the  vein 
or  lode  by  the  customs,  regulations,  and  laws  in  force  at  the  date  of  their 
location.  A  mining  claim  located  after  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  whether  located  by  one  or  more  persons,  may  equal, 
but  shall  not  exceed,  one  thousand  five  hundred  feet  in  length  along  the 
vein  or  lode ;  but  no  location  of  a  mining  claim  shall  be  made  until  the  dis- 
covery of  the  vein  or  lode  within  the  limits  of  the  claim  located.  No  claim 
shall  extend  more  than  three  hundred  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  nor  shall  any  claim  be  limited  by  any  mining  regulation 
to  less  than  twenty-five  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  except  where  adverse  rights  existing  on  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  render  such  limitation  necessary.  The 
end  lines  of  each  claim  shall  be  parallel  to  each  other.     Rev.  St.  U.  S.,  §  2320. 

Sec.  2322.  The  locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge,  situated  on  the 
public  domain,  their  heirs  and  assigns,  where  no  adverse  claim  exists  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as  they  com- 
ply with  the  laws  of  the  United  States,  and  with  State,  Territorial,  and  local 
regulations  not  in  conflict  with  the  laws  of  the  United  States  governing  their 
possessory  title,  shall  have  the  exclusive  right  of  possession  and  enjoyment 
of  all  the  surface  included  within  the  lines  of  their  locations,  and  of  all 
veins,  lodes,  and  ledges  throughout  their  entire  depth,  the  top  or  apex  of 
which  lies  inside  of  such  surface  lines  extended  downward  vertically,  al- 
though such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular 
in  their 'course  downward  as  to  extend  outside  the  vertical  side  lines  of  such 
surface  locations.  But  their  right  of  possession  to  such  outside  parts  of 
such  veins  or  ledges  shall  be  confined  to  such  portions  thereof  as  lie  be- 
tween vertical  planes  drawn  downward  as  above  described,  through  the  end 
lines  of  their  locations,  so  continued  in  their  own  direction  that  such  planes 
will  intersect  such  exterior  parts  of  such  veins  or  ledges.  And  nothing  in 
this  section  shall  authorize  the  locator  or  possessor  of  a  vein  or  lode  which 
extends  in  its  downward  course  beyond  the  vertical  lines  of  his  claim  to 
enter  upon  the  surface  of  a  claim  owned  or  possessed  by  another.  Rev. 
St.  U.  S.,  §  2322. 


Section  1. — Vein  Essentials  for  Extralateral  Right  Purposes. 
DUGGAN  V.  DAVEY. 

(See  ante,  p.  25,  for  a  report  of  the  case.) 
411 


412  SUB-SURFACE    RIGHTS. 

TABOR  V.  DEXLER. 
(See  ante,  p.  40,  for  a  report  of  the  case.) 


GRAND  CENTRAL  MIN.  CO.  v.  MAMMOTH  MIN.  CO. 
(See  ante,  p.  41,  for  a  report  of  the  case.) 


GOLDEN  V.  MURPHY  et  al. 
(See  post,  p.  622,  for  a  report  of  the  case.) 


Section  2. — Intralimital  Rights. 

REYNOLDS  and  another  v.  IRON  SILVER  MIN.  CO. 

1886.     Supreme  Court  of  the  United  States. 
116  U.  S.  687,  29  L.  ed.  774,  6  Sup.  Ct.  601. 

Miller,  J.^ — This  is  a  writ  of  error  to  circuit  court  for  the 
district  of  Colorado,  which  brings  here  for  review  a  judgment  of 
that  court  in  an  action  to  recover  possession  of  a  part  of  a  vein  or 
lode  of  mineral  deposit. 

The  plaintiff  below,  the  Iron  Silver  Mining  Company,  alleged  that 
it  was  the  owner  of  193.43  acres  of  land,  conveyed  by  the  United 
States  by  patent  to  its  grantors,  and  seeks  to  recover  of  defendants 
a  part  of  the  land  thus  patented.  It  is  described  in  the  petition  as 
mining  land  and  a  mining  claim.  The  patent  under  which  plaintiff 
claims,  which  was  introduced  in  evidence,  purports  to  be  for  placer 
mines,  and  it  takes  two  pages  of  printed  matter  to  describe  the 
courses,  distances,  and  corners.  As  the  law  does  not  permit  any 
one  claim  to  cover  more  than  20  acres  in  locating  placer  mining 
claims,  it  is  obvious  that  under  the  ruling  of  this  court  in  Smelting 
Co.  V.  Kemp,  104  U.  S.  636,  a  number  of  these  claims,  amounting  at 
least  to  10,  have  been  consolidated  into  one  patent,  which  was  issued 
to  Wells  and  Moyer,  the  patentees. 

The  defendants  asserted  a  right  to  the  vein  or  deposit  in  which 
they  were  working  under  lode  claims  called  the  "Crown  Point"  and 
"Pinnacle"  claims,  which  were  older  than  that  of  plaintiff.    Defend- 

^  Parts  of  the  opinion  are  omitted. 


INTRALIMITAL    RIGHTS.  4I3 

ants  also  set  out  another  defense  in  the  following  language :  "That 
at  the  time  of  the  survey,  entry,  and  patenting  of  the  said  Wells 
and  Moyer  placer  claim,  a  certain  lode,  vein,  or  deposit  of  quartz 
or  other  rock  in  place,  carrying  carbonates  of  lead  and  silver-bearing 
ore,  and  of  great  value,  called  the  'Pinnacle  Lode,'  and  a  certain  lode, 
vein,  or  deposit  carrying  like  minerals  of  great  value,  were  known 
and  claimed  to  exist  within  the  boundaries  and  underneath  the 
surface  of  said  placer  claim,  survey  lot  No.  281 ;  and  that  the  fact 
that  such  vein  or  veins  were  claimed  to  exist  and  did  exist  as  afore- 
said within  said  premises  was  known  to  the  patentees  of  said  claim 
at  all  times  hereinbefore  mentioned  ;  and  that  in  the  application  for 
patent  for  said  placer  claim  the  said  vein  or  veins  so  known  to  exist 
were  not  included,  and  were,  in  the  patent  issued  upon  such  applica- 
tion, expressly  excluded  therefrom.  And,  further,  in  the  said  patent 
it  was  expressly  and  in  terms  reserved  that  the  premises  in  and  by 
such  patent  conveyed  might,  by  the  proprietor  of  any  such  vein  or 
lode  of  quartz  or  other  rock  in  place  bearing  mineral  or  ore  as 
aforesaid,  be  entered  for  the  purpose  of  extracting  and  removing 
the  ore  from  such  lode,  vein,  or  deposit,  should  the  same,  or  any  part 
thereof,  be  found  to  penetrate,  intersect,  pass  through,  or  dip  into 
the  premises  by  such  patent  granted." 

The  case  was  tried  by  a  jury,  and  a  verdict  rendered  for  plaintiff, 
under  a  charge  from  the  court  which  required  such  a  verdict  at  their 
hands.    *    *    * 

The  conflict  in  principle  between  the  instructions  asked  and  re- 
fused and  those  given  by  the  court  is  marked  and  easily  discerned, 
and  presents  the  only  question  in  the  case.  Its  primary  form  is 
presented  by  the  fourth  of  the  defndant's  requests,  namely,  "that 
plaintiff  must  recover  on  the  strength  of  his  own  title."  This  is  the 
fundamental  principle  on  which  all  actions  of  ejectment  or  actions 
to  recover  possession  of  real  estate  rest.  Even  where  the  plaintiff 
recovei;s  on  proof  of  priority  of  possession,  it  is  because  in  the 
absence  of  any  title  in  any  one  else  this  is  evidence  of  a  title  in 
plaintiff.  If  there  is  any  exception  to  the  rule  that  in  an  action 
to  recover  possession  of  land  the  plaintiff  must  recover  on  the 
strength  of  his  own  title ;  and  that  the  defendant  in  possession  can 
lawfully  say :  "Until  you  show  some  title,  you  have  no  right  to 
disturb  me," — it  has  not  been  pointed  out  to  us. 

The  remainder  of  this  fourth  prayer  was  a  further  statement  of 
the  same  rule  as  applied  to  the  case  in  hand :  "If  the  vein  is  not  con- 
veyed to  plaintiffs  by  the  placer  patent  under  which  they  claim,  then 
it  makes  no  difference  whether  defendants  have  any  title  or  not ;  the 
plaintiffs  cannot  recover  on  the  weakness  of  defendants'  title." 
There  is  not  in  the  record  any  pretense  or  claim  of  title  in  plaintiff, 
except  that  growing  out  of  the  placer  patent  to  Wells  and  Moyer. 
If  that  gave  no  title  to  the  vein  in  controversy,  plaintiffs  had  none. 
There  is  no  assertion  by  them  of  prior  possession,  discovery,  or  claim 


414  SUB-SURFACE    RIGHTS. 

to  that  vein,  nor  of  any  other  right  to  it  than  that  it  is  found  beneath 
the  surface  of  this  placer  patent.  While  the  court  refused  to  give  this 
instruction,  he  did  instruct  the  jury  that  defendants  were  naked 
trespassers,  and  added  that  "as  to  such  intruders  the  plaintiff's 
placer  title  might  give  a  right  of  possession  and  recovery."  He  had 
previously  said  that  this  would  be  a  question  of  some  difficulty  in  a 
case  where  defendants  had  shown  some  right  or  interest  in  the  lode, 
or  an  intention  to  claim  the  same  according  to  local  laws  and  the  acts 
of  congress.  If  this  made  any  difference  in  defendants'  right  as 
against  the  placer  patent,  then  it  appears  to  us  that  they  did  "show 
an  intention  to  claim  the  locus  in  quo  according  to  local  laws  and 
the  acts  of  congress,"  for  they  were  working  under  the  Crown  point 
and  Pinnacle  claims,  which  were  legally  established,  and  were  pur- 
suing the  vein  on  which  these  claims  were  located.  But  the  court 
held  that  the  evidence  showed  that  they  were  pursuing  it  when  it 
passed  out  of  the  end  lines  of  the  claim  instead  of  the  side  lines.  It 
would  seem  that  such  possession  as  this  ought  to  be  sufficient  to 
enable  them  to  put  the  plaintiff  upon  proof  of  its  title. 

It  is  fair,  however,  to  say  that  the  court  in  effect  affirms  the  doc- 
trine that  the  patent  for  a  placer  mine  (this  patent)  gives  title  to  a 
vein  or  lode  under  its  surface,  though  known  to  the  original  claim- 
ant or  patentee  at  the  time  of  the  assertion  of  the  claim  and  issue  of 
the  patent,  and  not  disclosed  to  the  land  officers  or  mentioned  in  the 
patent,  or  in  the  original  claim,  as  against  one  not  having  a  superior 
title.  The  court  says  the  evidence  tends  to  prove  that  the  lode  in 
controversy  was  known  to  Wells  and  A/[oyer,  grantees  of  the  United 
States,  at  the  time  they  made  application  for  the  placer  patent  under 
which  plaintiff  claims  title ;  also  that  Stevens,  a  grantee  of  Wells 
and  Moyer,  and  grantor  of  plaintiff,  knew  of  the  existence  of  the 
lode  at  the  time  the  application  was  made  for  the  patent,  and  pro- 
cured the  application  to  be  made,  with  the  intention  to  acquire  title 
to  the  lode  now  in  dispute.  Yet,  while  the  lode  is  not  mentioned  in 
the  patent,  the  court  held  that  for  the  purposes  of  this  suit  the  title 
to  it  was  conferred  by  that  instrument.  It  appears  to  us  that  such 
a  proposition  is  opposed  to  the  policy  of  the  acts  of  congress  in  the 
different  rules  which  it  applies  to  granting  titles  to  placer  mines, 
and  to  vein,  lode,  and  fissure  mines ;  to  the  express  language  of  the 
statute ;  and  to  the  reservations  in  the  patent  itself. 

It  is  not  necessary  to  go  further  than  an  examination  of  chapter  6 
of  the  Revised  Statutes  concerning  the  public  lands,  to  see  this 
difference.    *    *    * 

It  [Congress]  made  provision  for  three  distinct  classes  of  cases: 
(i)  When  the  applicant  for  a  placer  patent  is  at  the  time  in  posses- 
sion of  a  vein  or  lode  included  within  the  boundaries  of  his  placer 
claim,  he  shall  state  that  fact,  and  on  payment  of  the  sum  required 
for  a  vein  claim,  and  25  feet  on  each  side  of  it.  at  $5  per  acre  and 
$2.50  for  the  remainder  of  the  placer  claim,  his  patent  shall  cover 


INTRALIMITAL   RIGHTS.  4I5 

both.  (2)  It  enacts  that  where  no  such  vein  or  lode  is  known  to  exist 
at  the  time  the  patent  is  appUed  for,  the  patent  for  a  placer  claim 
shall  carry  all  valuable  mineral  and  other  deposits  which  may  be 
found  within  the  boundaries  thereof.  (3)  But  in  case  where  the  ap- 
plicant for  the  placer  patent  is  not  in  possession  of  such  lode  or 
vein  within  the  boundaries  of  his  claim,  but  such  a  vein  is  knozvn  to 
exist,  and  it  is  not  referred  to  or  mentioned  in  the  claim  or  patent, 
then  the  application  shall  be  construed  as  a  conclusive  declaration 
that  the  claimant  of  a  placer  mine  has  no  right  to  the  possession  of 
the  vein  or  lode  claim. 

It  is  this  latter  class  of  cases  to  which  the  one  before  us  belongs. 
It  may  not  be  easy  to  define  the  words  "known  to  exist"  in  this  act. 
Whether  this  knowledge  must  be  traced  to  the  applicant  for  the  pat- 
ent, or  whether  it  is  sufficient  that  it  was  generally  known,  and  what 
kind  of  evidence  is  necessary  to  prove  this  knowledge,  we  need  not 
here  inquire.  It  is  perhaps  better  that  these  questions  should  be  de- 
cided as  they  arise.  They  do  not  arise  here,  because  the  court  took 
all  this  kind  of  evidence  from  the  jury  on  the  ground  that  defendants 
were  trespassers. 

It  said  in  the  charge,  not  only  was  there  evidence  that  the  vein  was 
known  to  exist  when  the  application  was  made  by  Wells  and  Moyer, 
but  that  they  knew  it,  and  that  one  of  the  parties  in  interest  (Stev- 
ens) knew  it,  and  procured  the  application  to  be  made  for  the  placer 
patent  with  the  intent  to  secure  this  lode.  There  was  here  no  ques- 
tion of  sufficiency  or  character  of  the  testimony  as  to  the  knowledge 
of  the  existence  of  this  vein,  but  the  jury  was  told  that  it  was  all 
immaterial,  because  in  any  event  the  patent  carried  the  lode  as 
against  the  defendants.  The  patent  itself  declares  that  it  is  subject 
to  the  following  conditions :  ( i )  That  it  is  restricted  to  any  lodes, 
veins,  or  other  mineral  bearing  quartz  which  are  not  claimed  or 
known  to  exist  at  the  date  of  the  patent;  (2)  that  should  any  such 
vein  or  lode  be  claimed  or  known  to  exist  within  the  described  prem- 
ises at  the  date  of  the  patent,  the  same  is  expressly  excluded  from  it. 

It  is  said  that  this  part  of  the  patent  is  void  because  there  was  no 
law  which  authorized  its  insertion,  and  because  it  is  in  conflict  with 
the  rights  of  the  claimant  of  a  placer  mine  under  the  acts  of  congress. 
Without  deciding  on  the  effect  of  the  acceptance  without  protest  of 
a  patent  with  such  exceptions  in  the  granting  clause,  where  their 
insertion  is  the  voluntary  act  of  the  officers  who  execute  the  instru- 
ment, it  is  sufficient  to  say  that  these  conditions  but  give  expression 
to  the  intent  of  the  statute.  We  are  of  opinion  that  congress  meant 
that  lodes  and  veins  known  to  exist  when  the  patent  was  asked  for 
should  be  excluded  from  the  grant  as  much  as  if  they  were  described 
in  clear  terms.  It  was  not  intended  to  remit  the  question  of  their 
title  to  be  raised  by  some  one  who  had  or  might  get  a  better  title, 
but  to  assert  that  no  title  passed  by  the  patent  in  such  case  from  the 
United  States.    It  remains  in  the  United  States  at  the  time  of  the 


4l6  SUB-SURFACE    RIGHTS. 

issuing-  of  the  patent,  and  in  such  case  it  does  not  pass  to  the  patentee. 
He  takes  his  surface  land,  and  his  placer  mine,  and  such  lodes  or 
veins  of  mineral  matter  within  it  as  were  unknown,  but  to  such  as 
-cvere  knozvn  to  exist  he  gets  by  that  patent  no  right  whatever.  The 
title  remaining  in  his  grantor,  the  United  States,  to  this  vein,  the 
existence  of  which  was  known,  he  has  no  such  interest  in  it  as  au- 
thorizes him  to  disturb  any  one  else  in  the  peaceable  possession  and 
mining  of  that  vein.  When  it  is  once  shown  that  the  vein  was  known 
to  exist  at  the  time  he  acquired  title  to  the  placer,  it  is  shown  that 
he  acquired  no  title  or  interest  in  that  vein  by  his  patent.  Whether 
the  defendant  has  title,  or  is  a  mere  trespasser,  it  is  certain  that  he  is 
in  possession,  and  that  is  a  sufficient  defense  against  one  who  has  no 
title  at  all,  and  never  had  any. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  case  re- 
manded to  that  court,  with  instructions  to  set  aside  the  verdict  and 
grant  a  new  trial. 

Waite,  C.  J.,  (dissenting.) — I  am  unable  to  agree  to  this  judg- 
ment. The  facts  briefly  stated  are  these :  The  mining  company  holds 
title  under  a  patent  for  a  placer  claim.  Within  the  boundaries  of  this 
claim,  as  located  on  the  surface  and  extended  vertically  downwards, 
is  a  vein  or  lode.  The  existence  of  this  vein  or  lode  was  known  when 
the  patent  under  which  the  mining  company  holds  was  issued,  but 
it  had  not  then,  nor  has  it  now,  been  located  as  a  vein  or  lode  claim. 
Neither  Reynolds  nor  Morrissey  has  any  title  to  or  claim  upon  the 
lode  within  the  boundaries  of  the  placer  claim.  They  are  mere  in- 
truders, having  wrongfully,  and  without  any  authority  of  law, 
worked  from  an  adjoining  claim  under  the  surface  of  the  placer  claim 
of  the  mining  company  and  taken  possession  of  the  mineral  in  the 
lode.  Under  these  circumstances  it  seems  to  me  the  mining  com- 
pany has  the  better  right.  The  question  is  not  whether  the  company 
owns  the  lode  or  vein,  nor  whether  it  has  the  right  to  take  mineral 
therefrom,  but  whether,  as  against  a  mere  intruder,  it  has  the  better 
right  to  the  possession.  By  the  express  provision  of  section  2333  the 
patent  under  which  the  company  holds  gives  it  no  right  to  the  pos- 
session of  any  vein  or  lode  claim  within  the  boundaries  of  the  placer 
patent,  but  as  yet  no  such  claiin  exists.  There  is  a  lode  or  vein,  but 
no  one  has  either  claimed  or  attempted  to  claim  it.  Quite  different 
questions  would  arise  if  Reynolds  or  Morrissey  were  attempting  to 
locate  a  lode  claim  within  the  boundaries  of  the  placer  patent  upon 
a  lode  known  to  exist  when  the  patent  was  applied  for.  In  my  opin- 
ion the  charge  of  the  court  was  right,  and  the  judgment  should  be 
affirmed. 


INTRALIMITAL   RIGHTS.  417 

ST.  LOUIS  MINING  &  MILLING  COMPANY  OF  MONTANA 
V.  MONTANA  MINING  COMPANY. 

1904.     Supreme  Court  of  the  United  States. 
194  U.  S.  235,  48  L.  ed.  953,  24  Sup.  Ct.  654. 

Appeal  from  the  United  States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit  to  review  a  judgment  which  affirmed  a  judgment  of 
the  Circuit  Court  for  the  District  of  Montana,  enjoining  the  further 
prosecution  by  the  owner  of  a  lode  mining  claim  of  a  horizontal  tun- 
nel from  his  claim  into  an  adjoining  patented  lode  claim,  for  the 
purpose  of  reaching  a  vein  in  its  dip  through  the  adjoining  claim. 
Affirmed. 

Statement  by  Mr.  Justice  Brewer  : 

This  was  a  suit  brought  by  the  appellee  (hereinafter  called  the 
Montana  company)  against  the  appellants  (hereinafter  called  the  St. 
Louis  company)  in  the  circuit  court  of  the  United  States  for  the  dis- 
trict of  Montana,  for  an  injunction  restraining  the  further  prosecu- 
tion of  a  tunnel.  The  facts  were  agreed  upon,  and  are  substantially 
that  the  Montana  company  was  the  owner  and  in  possession  of  the 
Nine  Hour  lode  mining  claim  under  a  patent  from  the  United  States, 
on  a  location  made  under  the  mining  acts  of  1872  and  acts  amenda- 
tory thereof;  that  the  St.  Louis  company  was  the  owner  of  the  St. 
Louis  lode  mining  claim,  holding  the  same  under  a  similar  title.  In 
the  St.  Louis  claim  is  a  vein  other  than  the  discovery  vein,  having 
its  apex  within  the  surface  limits  of  the  St.  Louis  claim,  but  on  its 
dip  passing  out  of  the  side  line  of  the  St.  Louis  claim  into  the  Nine 
Hour  claim.  The  tunnel  was  260  feet  underground,  running  from 
the  St.  Louis  into  the  Nine  Hour  claim  and  for  the  purpose  of 
reaching  the  vein  on  its  descent  through  the  latter.  It  was  run  hori- 
zontally through  country  rock,  and  between  the  east  line  of  the  St. 
Louis,  claim  and  the  vein  above  referred  to  will  not  intersect  any 
other  vein  or  lode.  The  St.  Louis  company  did  not  propose  to  extend 
the  tunnel  beyond  the  point  at  which  it  would  intersect  the  vein  above 
referred  to,  and  simply  proposed  to  use  this  cross-cut  tunnel  in 
working  and  mining  said  vein.  The  circuit  court,  upon  the  facts 
agreed  to,  enjoined  the  further  prosecution  of  the  tunnel.  That  in- 
junction was  sustained  by  the  circuit  court  of  appeals  for  the  ninth 
circuit  (51  C.  C.  A.  530,  113  Fed.  900)  from  whose  decision  the  St. 
Louis  company  has  brought  the  case  to  this  court. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court : 

The  situation  and  the  question  can  be  easily  presented  to  the  mind 
by  considering  the  significant  lines  as  lines  of  a  right-angled  triangle  ; 
the  vein  descending  on  its  dip  being  the  hypothenuse,  the  tunnel  the 
base  line,  and  the  boundary  between  the  two  claims  tlie  side  line  of 
the  triangle.  The  St.  Louis  company,  being  the  owner  of  the  vein, 
may  pursue  and  appropriate  that  vein  on  its  course  downward,  al- 
27 — Mining  Law 


4l8  SUB-SURFACE    RIGHTS. 

though  it  extends  outside  the  vertical  side  Hnes  of  its  claim  and  be- 
neath the  surface  of  the  Nine  Hour  lode  claim.  Such  is  the  plain 
language  of  §  2322,  Rev.  Stat.  (U.  S.  Comp.  Stat.  1901,  p.  1425) 
which  grants  to  locators  "the  exclusive  right  of  possession  and  en- 
joyment of  all  the  surface  included  within  the  lines  of  their  loca- 
tions, and  of  all  veins,  lodes,  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically,  although  such  veins,  lodes,  or  ledges 
may  so  far  depart  from  a  perpendicular  in  their  course  downward  as 
to  extend  outside  the  vertical  side  lines  of  such  surface  locations." 

In  other  words,  it  has  a  right  to  the  hypothenuse  of  the  triangle. 
May  it  also  occupy  and  use  the  base  line  ?  Is  it,  in  pursuing  and  ap- 
propriating this  vein,  confined  to  work  in  or  upon  the  vein,  or  is  it 
at  liberty  to  enter  upon  and  appropriate  other  portions  of  the  Nine 
Hour  ground  in  order  that  it  may  more  conveniently  reach  and  work 
the  vein  which  it  owns?  .Its  contention  is  that  the  mining  patent 
conveys  title  to  only  the  surface  of  the  ground  and  the  veins  which 
go  with  the  claim,  and  that  the  balance  of  the  underground  territory 
is  open  to  anyone  seeking  to  explore  for  mineral,  or  at  least  may  be 
taken  possession  of  by  one  other  than  the  owner  of  the  claim  for  the 
purpose  of  conveniently  working  a  vein  which  belongs  to  him.  The 
question  may  be  stated  in  another  form :  Does  the  patent  for  a  lode 
claim  take  the  subsurface  as  well  as  the  surface,  and  is  there  any 
other  right  to  disturb  the  subsurface  than  that  given  to  the  owner 
of  a  vein  apexing  without  its  surface,  but  descending  on  its  dip  into 
the  subsurface,  to  pursue  and  develop  that  vein  ? 

We  are  of  opinion  that  the  patent  conveys  the  subsurface  as  well 
as  the  surface,  and  that,  so  far  as  this  case  discloses,  the  only  limita- 
tion on  the  exclusive  title  thus  conveyed  is  the  right  given  to  pursue 
a  vein  which  on  its  dip  enters  the  subsurface.  By  §  2319,  Rev.  Stat. 
(U.  S.  Comp.  Stat.  1901,  p.  1424)  "all  valuable  mineral  deposits  in 
lands  belonging  to  the  United  States"  are  "open  to  exploration  and 
purchase,  and  the  lands  in  which  they  are  found  to  occupation  and 
purchase."  By  §  2325  (U.  S.  Comp.  Stat.  1901,  p.  1429)  "a  patent 
for  any  land  claimed  and  located  for  valuable  deposits  may  be  ob- 
tained in  the  following  manner :  Any  person  ^  t-  *  having 
claimed  and  located  a  piece  of  land  for  such  purposes  *  *  * 
shall  thereupon  be  entitled  to  a  patent  for  the  land."  In  a  subsequent 
part  of  the  same  section  it  is  provided  that  the  applicant  shall  pay  $5 
per  acre.  Appellants  rely  upon  the  clause  heretofore  quoted  from 
§  2322  as  a  limitation  upon  the  full  extent  of  the  grant  indicated  by 
these  provisions.  But  this  limitation  operates  only  indirectly  and  by 
virtue  of  the  grant  to  another  locator  to  pursue  a  vein  apexing  within 
his  surface  boundaries  on  its  dip  downward  through  some  side  line 
into  the  ground  embraced  within  the  patent.  It  withdraws  from  the 
grant  made  by  the  patent  only  such  veins  as  others  own  and  have  a 
right  to  pursue.  As  said  by  Lindley  (i  Lindley,  Mines,  2d  ed.  §  71)  : 


INTRALIMITAL   RIGHTS.  419 

"In  other  words,  under  the  old  law  he  located  the  lode.  Under  the 
new,  he  must  locate  a  piece  of  land  containing  the  top,  or  apex,  of 
the  lode.  While  the  vein  is  still  the  principal  thing,  in  that  it  is  for 
the  sake  of  the  vein  that  the  location  is  made,  the  location  must  be 
of  a  piece  of  land  including  the  top,  or  apex  of  the  vein." 

And  in  vol.  2  (§  780)  : 

"Prima  facie,  such  a  patent  confers  the  right  to  everything  found 
within  vertical  planes  drawn  through  the  surface  boundaries ;  but 
these  boundaries  may  be  invaded  by  an  outside  lode  locator  holding 
the  apex  of  a  vein  under  a  regular  valid  location,  in  the  pursuit  of 
his  vein  on  its  downward  course  underneath  the  patented  surface." 

See  also  Calhoun  Gold  Min.  Co.  v.  Ajax  Gold  Min.  Co.  182  U.  S. 
499,  508,  45  L.  ed.  1200,  1206,  21  Sup.  Ct.  Rep.  885.  The  decisions  of 
the  courts  in  the  mining  regions  are  referred  to  in  the  opinion  of  the 
court  of  appeals  in  this  case,  from  which  we  quote : 

"This  view  is  in  accord  with  the  trend  of  all  the  decisions  to  which 
our  attention  has  been  directed.  In  Parrot  Silver  &  Copper  Co.  v. 
Heinze,  25  Mont.  139,  53  L.  R.  A.  491,  87  Am.  St.  Rep.  386,  64  Pac. 
326,  the  supreme  court  of  Montana  held  in  substance  that  the  owner 
of  a  mining  claim  is  prima  facie  the  owner  of  a  vein  or  lode  found  at 
a  depth  of  1,300  feet  within  the  vertical  planes  of  the  lines  of  his 
own  claim,  and  that  that  presumption  would  prevail  until  it  was 
shown  that  the  vein  had  its  outcrop  in  the  surface  of  some  other  lo- 
cated claim  in  such  a  way  as  to  give  to  the  owners  of  the  latter  the 
right  to  pursue  it  on  its  downward  course.  The  court  said :  'Upon  a 
valid  location  of  a  definite  portion  of  land  is  founded  the  right  of 
possession.  The  patent  grants  the  fee,  not  to  the  surface  and  ledge 
only,  but  to  the  land  containing  the  apex  of  the  ledge.  The  right  to 
follow  the  ledge  upon  its  dip  between  the  vertical  planes  of  the  par- 
allel end  lines  extending  in  their  own  direction  when  it  departs  be- 
yond the  vertical  planes  of  the  side  lines  is  an  expansion  of  the 
rights 'which  would  be  conferred  by  a  common-law  grant.'  Of  simi- 
lar import  is  State  ex  rel.  Anaconda  Copper  Min.  Co.  v.  District 
Court,  25  Mont.  504,  65  Pac.  1020.  In  Doe  v.  Waterloo  Min.  Co.  54 
Fed.  935,  Judge  Ross  said :  'Except  as  modified  by  the  statute,  no 
reason  is  perceived  why  one  who  acquires  the  ownership  or  posses- 
sion of  such  lands  should  not  hold  them  with  and  subject  to  the  inci- 
dents of  ownership  and  possession  at  common  law.'  In  Consolidated 
Wyoniing  Gold  Min.  Co.  v.  Champion  Min.  Co.  63  Fed.  540,  Judge 
Hawley  said :  'Hands  ofif  of  any  and  everything  within  my  surface 
lines  extending  vertically  downward,  until  you  prove  that  you  are 
working  upon  and  following  a  vein  which  has  its  apex  within  your 
surface  claim." 

The  judgment  of  the  Court  of  Appeals  is  affirmed. 


420  SUB-SURFACE    RIGHTS. 

JEFFERSON  MINING  CO.  v.  ANCHORIA  LELAND  MIN.  & 

MILL.  CO. 

(See  post,  p.  533,  for  a  report  of  the  case.) 
ROXANNA  GOLD  MINING  &  TUNNELING  CO.  v. 

CONE  ET  AL. 

(See  post,  p.  543,  for  a  report  of  the  case.) 

COLORADO  CENT.  CONSOLIDATED  MIN.  CO.  v.  TURCK. 
1892.     Circuit  Court  of  Appeals.     2  C.  C.  A.  67,  50  Fed.  888. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Colorado.  Affirmed. 

Before  Caldwell,  Circuit  Judge,  and  Shiras  and  Thayer,  Dis- 
trict Judges. 

Thayer,  District  Judge.- — *  *  *  The  instruction  tendered 
by  the  defendant  company  in  effect  asked  the  circuit  court  to  declare 
that  section  2322  does  not  permit  one  who  locates  upon  the  apex  of  a 
lode  or  vein  to  follow  the  vein  outside  of  his  side  lines  and  under- 
neath the  boundary  lines  of  an  adjoining  proprietor  if  the  latter  holds 
under  a  senior  patent.  As  the  proposition  was  stated  in  the  instruc- 
tion it  excluded  all  consideration  of  the  question  whether  the  Colo- 
rado Central  Company  had  or  had  not  first  discovered  and  located  the 
same  vein  on  the  dip  which  the  owner  of  the  Aliunde  was  following 
underneath  its  territory.  In  other  words,  it  asserted  that  the  right 
given  by  section  2322  to  the  holder  of  the  apex  to  follow  his  vein  on 
its  dip  outside  of  the  side  lines  of  his  claim  is  merely  a  right  that 
can  be  asserted  against  an  adjoining  claimant  holding  under  a  junior 
patent  or  certificate.  We  are  of  the  opinion  that  the  instruction,  as 
asked,  was  properly  refused.  It  rested  upon  an  interpretation  of  the 
statute  that  cannot  be  sustained  in  view  of  the  language  employed, 
and,  so  far  as  we  are  aware,  has  never,  as  yet,  been  adopted.  In  two 
cases  (Milling  Co.  v.  Spargo,  16  Fed.  Rep.  348,  and  Amador  Medean 
Gold  Min.  Co.  v.  South  Spring  Hill  Gold  Min.  Co.,  36  Fed.  Rep. 
668)  it  was  held  that  a  patent  for  agricultural  lands,  issued  under  the 
pre-emption  laws  of  the  United  States,  carries  the  right  to  all  mines 
underneath  the  surface  to  which  no  right  has  attached  at  the  time  the 
certificate  of  purchase  or  the  patent  issues,  and  that  a  reservation 
in  such  patent,  saving  the  rights  of  proprietors  of  mining  veins  or 
lodes,  related  solely  to  those  proprietors  whose  rights  had  attached 
before  the  lands  were  purchased  for  agricultural  purposes.  We  think 
that  the  same  effect  cannot  be  given  to  a  patent  for  a  mining  claim 
which  appears  to  have  been  given  in  the  cases  cited  to  patents  for 
agricultural  land.    The  title  acquired  by  a  patent  of  the  former  de- 

"  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


EXTRALATERAL    RIGHTS    UNDER   ACT    1866.  42I 

scription  bears  little  resemblance  to  a  title  conferred  by  the  latter, 
because  it  is  acquired  and  held  under  the  provisions  of  statutes  differ- 
ing widely  both  in  their  language  and  purpose.  The  statute  confer- 
ring the  right  to  follow  a  lode  outside  the  side  lines  of  a  location, 
when  the  top  or  apex  of  the  lode  lies  within  the  boundaries  of  the  lo- 
cation, does  not,  in  terms  or  by  necessary  implication,  limit  the 
exercise  of  that  right,  especially  where  mining  claims  are  involved, 
to  cases  where  the  adjoining  claims  are  held  under  junior  locations 
or  patents,  and  we  think  we  would  not  be  justified  in  placing  such  a 
limitation  upon  the  right  by  construction.  The  practice  of  the  gen- 
eral land  office  for  many  years  also  appears  to  have  been  opposed  to 
the  existence  of  any  such  limitation.     *     *     * 

Upon  the  whole,  therefore,  we  find  no  material  error  in  the  record, 
and  the  judgment  of  the  circuit  court  is  accordingly  affirmed." 


Section  3. — Extralateral  Rig-iits  Under  the  Act  of  1866. 

FLAGSTAFF  SILVER  TUNING  COMPANY  v.  TARBET. 

(See  post,  p.  431,  for  a  report  of  the  case.) 

ARGONAUT  ^IIN.  CO.  v.  KENNEDY  MIN.  &  MILL.  CO. 

1900.     Supreme  Court  of  California.     131  Cal.  15,  63  Pac.  148. 

Action  by  the  Argonaut  IMining  Company  against  the  Kennedy 
i\Iining  &  Milling  Company.  From  a  judgment  in  favor  of  plaintiff, 
defendant  appeals.     Affirmed. 

Temple,  J. — This  is  an  action  for  damages  for  the  value  of  ore 
alleged  to  have  been  taken  by  defendant  from  plaintiff's  mine,  situate 
in  Amador  county.  The  defendant  denies  taking  any  ore  or  gold- 
bearing  rock  from  plaintiff's  mine,  and  avers  that  defendant  is  the 
owner  of  the  mine  from  which  the  rock  was  taken.  The  cause  was 
submitted  in  the  trial  court  upon  an  agreed  statement  of  facts,  each 
party  having  the  right  to  object  to  the  relevancy,  competency,  and 
materiality  of  any  part  of  it.  Certain  objections  to  evidence  were 
made  by  the  appellant,  which  were  overruled  by  the  court,  and  the 

^  Even  in  the  case  of  agricultural  land  patents,  the  same  rule  should  be  applied. 
As  Mr.  Lindley  points  out  (2  Lindley  on  Mines,  2  ed.,  §  612)  all  the  federal 
laws  providing  for  the  sale  and  disposal  of  the  public  lands  "are  essentially 
ill  pari  materia."  Opposed  to  Amador  Medean  Gold  Min.  Co.  v.  South  Spring 
Hill  Gold  Min.  Co..  36  Fed.  668,  is  the  decision  of  the  trial  judge  in  Wede- 
kind  V.  Bell,  26  Xev.  395,  69  Pac.  612,  which  the  upper  court  did  not  pass  on 
because  of  a  settlement  pending  the  appeal.  In  the  briefs  of  counsel  as  sum- 
marized in  the  official  report  is  disclosed  the  trial  court's  ruling. 


422 


SUB-SURFACE    RIGHTS. 


main  argument  here  has  been  in  regard  to  these  ruHngs.  Much  of 
the  evidence  was  objected  to  simply  upon  the  ground  of  immaterial- 
ity. All  that  I  deem  it  necessary  to  say  in  regard  to  such  rulings  is 
that,  admitting  that  the  trial  court  erred,  as  I  am  inclined  to  think  it 
did,  defendant  has  suffered  no  harm.  The  question  of  law  upon 
which  the  case  must  turn  is  not  changed  or  affected  by  receiving  this 
immaterial  evidence. 

The  controversy  is  indicated  by  the  following  diagram : 


The  plaintiff  owns  the  Pioneer  quartz  mine,  and  the  defendant 
owns  the  Kennedy  mine  and  the  Silva  mine.  All  three  mines  had 
passed  to  patent  before  the  ore  was  taken  out  by  defendant.  The  ore 
was  taken  under  the  Silva  location,  and  within  its  exterior  limits 
carried  vertically  down.  It  was  taken  from  the  discovery  lode  of  the 
Pioneer  location,  which  is  the  only  lode  which  has  its  apex  within 
that  location.  It  enters  that  location  near  the  middle  point  of  the 
southern  end  line,  and  runs  northerly  through  the  location  in  a  direc- 
tion practically  parallel  to  the  side  lines,  through  the  center  of  the 


EXTRALATERAL    RIGHTS    UNDER   ACT    1866.  423 

northern  end  line.  In  fact,  save  that  the  end  Hnes  are  not  parallel, 
the  location  and  the  lode  are  the  ideals  upon  which  the  rules  and 
regulations  of  miners  and  the  laws  of  congress  seem  to  have  been 
based. 

The  defendant  does  not  assert  any  right  to  the  ore  in  dispute  by 
virtue  of  its  ownership  of  the  Kennedy  mine,  and  nothing  further 
need  be  said  about  it.  Defendant  asserts  title  to  the  ore  by  reason  of 
its  ownership  of  the  Silva  ground,  under  what  counsel  call  the  com- 
mon-law right  to  everything  beneath  the  surface.  It  admits  plain- 
tiff's ownership  of  the  Pioneer  mine,  and  that  the  lode  has  its  apex, 
as  stated,  within  its  surface  location,  but  denies  that  the  quartz  taken 
by  it  from  that  lode  is  within  that  location.  This  is  asserted,  as  I 
understand  the  contention,  upon  two  grounds :  First,  defendant  con- 
tends that,  because  of  nonparallelism  of  the  end  lines  of  the  Pioneer, 
it  carries  no  extralateral  rights ;  and,  second,  if  the  court  can  as  mat- 
ter of  law  construct  for  it  parallel  end  lines,  the  southerly  end  line 
being  the  base  line  from  which  the  location  was  projected,  the  par- 
allel will  be  made  by  extending  the  northern  end  line  in  a  direction 
parallel  to  the  direction  of  the  southerly  end  line. 

The  dip  of  the  lode  is  easterly  at  an  angle  of  about  60°  from  the 
plane  of  horizon,  and  the  end  lines  of  the  Pioneer  diverge  in  that 
direction  to  the  extent  of  about  14°  45'.  The  ore  was  taken  out  di- 
rectly beneath  the  Silva  surface  location  at  depths  varying  from 
1,400  to  2,000  feet  beneath  the  surface.  The  Silva  location  is  more 
than  900  feet  easterly  from  the  easterly  line  of  the  Pioneer  location. 
The  Pioneer  was  located,  as  the  patent  shows,  under  the  law  of  1866. 
The  application  for  a  patent  was  filed  January  13,  1871.  On  the  23d 
day  of  February,  1872,  the  Pioneer  entered  and  paid  for  its  mine, 
and  the  patent  is  dated  August  12,  1872.  The  act  to  promote  the  de- 
velopment of  the  mining  resources  of  the  United  States  was  passed 
May  10,  1872.  For  reasons,  which  will  appear  as  this  opinion  pro- 
ceeds, I  think  plaintiff  is  entitled  to  all  the  rights  which  would  attach 
to  such  a  location  under  the  law  of  1866,  and  to  any  additional  rights 
which  inured  to  such  locations  under  the  act  of  1872. 

Among  the  contentions  of  the  respondent  is  this :  "Although  the 
end  lines  were  not  required  to  be  parallel  under  the  act  of  1866,  yet 
if,  by  any  process  of  reasoning,  any  limitation  upon  the  extralateral 
right  was  imposed  upon  the  locators'  title  by  reason  of  the  divergence 
of  end  lines,  such  limitation  was  removed  by  the  act  of  May  10,  1872, 
which  granted  to  owners  of  locations  theretofore  made  the  right  to 
pursue  the  vein  on  its  downward  course,  between  the  end-line  plane 
of  such  location  as  it  existed."  This  proposition  is  based  upon  the 
language  of  the  first  proviso  in  section  3  of  the  law  of  1872.  After 
stating  that  the  locators  shall  have  certain  lodes  throughout  their 
entire  depth,  although  they  may  so  far  depart  from  a  perpendicular 
in  their  downward  course  as  to  extend  outside  the  vertical  side  lines, 
it  proceeds :  "Provided,  that  their  right  of  possession  to  such  outside 


424  SUB-SURFACE    RIGHTS. 

parts  of  said  veins  or  ledges  shall  be  confined  to  such  portions  thereof 
as  lie  between  vertical  planes  drawn  downward  as  aforesaid  through 
the  end  lines  of  their  location  so  continued  in  their  own  direction 
that  such  planes  will  intersect  such  exterior  parts  of  said  veins  or 
ledges."  Then  follows  another  proviso,  that  no  locator,  by  reason 
of  his  right  to  the  dip  of  his  lode,  shall  be  authorized  to  enter  upon 
the  surface  of  a  claim  owned  by  another.  These  provisos  grant  no 
rights  additional  to  those  already  given,  nor  do  they  purport  to  do 
so.  They  are  both  express  limitations  upon  rights  already  given. 
The  proviso  does  not  confer  ownership  to  all  within  those  planes,  but 
says,  in  effect,  that  no  locator  may  pass  beyond  them.  No  rule  of 
construction  with  which  I  am  familiar  would  authorize  or  require  a 
different  reading  of  the  section,  especially  in  the  face  of  the  evident 
policy  to  strictly  limit  the  rights  of  all  locators  as  to  length  along  the 
vein  or  lode. 

We  have  many  graphic  accounts  of  the  rush  of  gold  hunters  to 
California  in  1849.  The  river  banks  and  gulches  were  suddenly 
crowded  with  eager  and  earnest  men  anxious  to  dig  for  gold.  There 
was  no  law  by  which  any  one  could  secure  to  himself  any  portion  of 
the  rich  placers.  In  the  absence  of  regulation,  the  strongest  or  most 
unscrupulous  would  get  the  lion's  share.  The  miners,  of  necessity, 
made  and  enforced  their  own  laws.  Some  regulations  as  to  mining 
claims  sprung  into  existence  naturally,  in  fact  necessarily.  First,  so 
far  as  possible,  each  person  was  given  a  specified  portion  of  the 
ground,  which  he  could  mine.  Secondly,  the  allotment  to  each  was 
so  limited  that  there  should  be  no  monopoly.  So  far  as  possible,  all 
should  have  an  equal  chance.  The  right  of  the  first  possessor  was 
preferred,  but  no  matter  was  considered  more  important  than  the 
limitation  upon  the  extent  of  the  claims.  And,  thirdly,  as  a  corollary 
from  these  two  cardinal  rules,  the  third  follows :  That  each  claim- 
ant shall  mark  plainly  upon  the  surface  of  the  earth  the  boundaries 
of  his  claim,  that  others  may  locate  claims  without  interfering  with 
him.  These  essential  rules  have  been  the  basis  of  most  of  the  rules 
and  regulations  of  miners,  and  have  been  recognized  in  every  mining 
district  on  the  Pacific  Coast,  and  in  all  attempts  by  legislation,  terri- 
torial, state,  or  national,  to  regulate  mining  locations.  Indeed,  it 
may  be  said  that  the  purpose  of  all  these  laws  and  regulations  is  to 
secure  these  ends. 

These  views  are,  as  I  think,  expressed  by  Judge  Field  in  the  cele- 
brated Eureka  Case,  4  Sawy.  302,  Fed.  Cas.  No.  4,548.  The  locations 
there  considered  were  made  under  the  law  of  1866,  and  one  of  the 
questions  to  be  decided  was  whether  the  defendant  was  entitled  to  its 
allotted  distance  along  the  vein,  although  in  its  strike  the  vein  passed 
beyond  its  exterior  surface  lines.  There  was  no  contention  based 
upon  diverging  end  lines,  and  there  could  not  have  been ;  for  the 
ore  body  in  dispute  was  within  planes  passing  through  the  end  lines 
of  the  Champion  location,  which  belonged  to  plaintiff,  and  was  not 


EXTRALATERAL    RIGHTS    UNDER   ACT    1 866.  425 

within  such  planes  passing  through  the  end  Hnes  of  any  location  un- 
der which  defendant  claimed.  Defendant,  on  this  point,  simply  con- 
tended that  it  had  the  oldest  location,  and  under  the  law  of  1866  had 
a  right  to  the  number  of  feet  on  the  lode  called  for  in  its  location, 
although  it  extended  within  the  junior  locations  owned  by  plaintiff. 
It  was  held  that  defendant  could  not  follow  the  lode  on  its  strike 
through  any  line  of  its  surface  location.  In  reaching  this  conclusion 
the  court  emphasized  the  invariable  and  inexorable  policy  to  limit  the 
location  along  the  course  of  the  vein  to  the  quantity  located,  and  to 
the  line  of  the  surface  location,  and  to  permit  an  extension  of  right 
only  on  the  dip. 

Bearing,  then,  in  mind  that  the  argument  was  to  show  that  under 
the  law  of  1866  the  locator  could  not,  for  the  purpose  of  securing  his 
length  of  lode,  pass  the  lines  of  his  surface  location,  we  may  be  in- 
structed by  the  decision.  It  is  first  said  the  locations  under  the  law 
of  1866  are  not  invalid  because  the  end  lines  are  not  parallel.  The 
law  did  not  require  such  parallelism,  and  the  requirement  in  the  law 
of  1872  was  merely  directory,  and  no  consequence  attached  to  a  de- 
viation from  the  direction.  "Its  object  is  to  secure  parallel  end  lines 
drawn  vertically  down,  and  that  was  effected  in  these  cases  by  taking 
the  extreme  points  of  the  respective  locations  as  the  length  of  the 
lode." 

The  locator  was  limited  to  his  number  of  feet  on  the  lode  through- 
out its  entire  depth,  and  the  court  realized  that  the  only  possible 
mode  of  so  limiting  the  right  was  by  parallel  end  lines.  The  miners 
seem  to  have  regarded  a  lode  as  something  like  a  plank.  All  a  lo- 
cator had  to  do  was  to  measure  off  his  distance  upon  it,  and  then 
make  a  "square  cut"  at  the  end.  Judge  Field's  idea  that  the  planes 
of  the  end  "cuts"'  must  be  parallel  in  order  to  limit  the  locator  at  all 
depths  to  his  number  of  feet  claimed  upon  the  surface  is  further 
shown.  He  says :  "It  is  true  that  end  lines  are  not  in  terms  named 
in  the  fules  of  the  miners,  but  they  are  necessarily  implied,  and  no 
reasonable  construction  can  be  given  to  them  without  such  implica- 
tion. What  the  miners  meant  by  allowing  a  certain  number  of 
feet  on  a  ledge  was  that  each  locator  might  follow  his  vein  for  that 
distance  on  the  course  of  the  ledge,  and  to  any  depth  within  that 
distance.  So  much  of  the  ledge  he  was  permitted  to  hold  as  lay 
within  vertical  planes  drawn  down  through  the  end  lines  of  his  loca- 
tion, and  could  be  measured  anywhere  by  the  feet  on  the  surface.  If 
this  were  not  so,  he  might  by  the  bend  of  his  vein  hold  under  the 
surface  along  the  course  of  the  ledge  double  and  treble  the  amount  he 
could  take  on  the  surface.  Indeed,  instead  of  being  limited  by  the 
number  of  feet  prescribed  by  the  rules,  he  might  in  some  cases  oust 
all  his  neighbors,  and  take  the  whole  ledge.  No  construction  is  per- 
missible which  would  substantially  defeat  the  limitation  of  quantity 
on  a  ledge,  which  was  the  most  important  provision  in  the  whole 
system  of  rules.    Similar  rules  have  been  adopted  in  numerous  min- 


426  SUB-SURFACE    RIGHTS. 

ing  districts,  and  the  construction  thus  given  has  been  uniformly  and 
everywhere  followed.  We  are  confident  that  no  other  construction 
has  ever  been  adopted  in  any  mining  district  in  California  or  Ne- 
vada. And  the  construction  is  one  which  the  law  would  require  in 
the  absence  of  any  construction  by  miners.  If,  for  instance,  the  state 
were  to-day  to  deed  a  block  in  the  city  of  San  Francisco  to  twenty 
persons,  each  to  take  twenty  feet  front,  in  a  certain  specified  succes- 
sion, each  would  have  assigned  to  him  by  the  law  a  section  parallel 
with  that  of  his  neighbor  of  twenty  feet  in  width,  cut  through  the 
block.  No  other  mode  of  division  would  carry  out  the  grant.  The 
act  of  1866  in  no  respect  enlarges  the  right  of  the  claimant  beyond 
that  which  the  rules  of  the  mining  district  gave  him.  The  patent 
which  the  act  allows  him  to  obtain  does  not  authorize  him  to  go 
outside  of  the  end  lines  of  his  claim,  drawn  down  vertically  through 
the  ledge  or  lode.  It  only  authorizes  him  to  follow  his  vein,  with  its 
dips,  angles,  and  variations,  to  any  depth,  although  it  may  enter  land 
adjoining;  that  is,  land  lying  beyond  the  area  included  within  his 
surface  lines.  It  is  land  lying  on  the  side  of  the  claim,  not  on  the 
ends  of  it,  which  may  be  entered.  The  land  on  the  ends  is  reserved 
for  other  claimants  to  explore.  It  is  true,  as  stated  by  the  defend- 
ant, that  the  surface  land  taken  up  in  connection  with  a  linear  lo- 
cation on  the  ledge  or  lode  is,  under  the  act  of  1866,  intended  solely 
for  the  convenient  working  of  the  mine,  and  does  not  measure  the 
miner's  right,  either  to  the  linear  feet  upon  its  course,  or  to  follow 
the  dips,  angles,  and  variations  of  the  vein,  or  control  the  direction 
he  shall  take.  But  the  line  of  location  taken  does  measure  the  extent 
of  the  miner's  right.  That  must  be  along  the  general  course,  or 
"strike,"  as  it  is  termed,  of  the  ledge  or  lode.  Lines  drawn  vertically 
down  through  the  ledge  or  lode,  at  right  angles  with  a  line  repre- 
senting this  general  course  at  the  ends  of  the  claimant's  line  of  loca- 
tion, will  carve  out,  so  to  speak,  a  section  of  the  ledge  or  lode  within 
which  he  is  permitted  to  work,  and  out  of  which  he  cannot  pass." 

Judge  Field  here  was  endeavoring  to  show  that  the  locator  was 
limited,  under  the  law  of  1866,  to  the  specified  number  of  linear  feet 
on  the  lode  throughout  its  entire  depth.  The  extent  of  his  right  could 
be  measured  by  the  feet  on  the  surface.  The  statement  that  the  re- 
quirement in  the  law  of  1872,  that  the  end  lines  shall  be  parallel,  was 
only  directory,  was  overruled  in  Iron  Silver  Min.  Co.  v.  Elgin  Min- 
ing &  Smelting  Co.,  118  U.  S.  196,  6  Sup.  Ct.  1177,  30  L.  Ed.  98, 
but  that  the  limitation  upon  the  line  or  distance  on  the  lode  continues 
throughout  its  entire  depth  has  always  been  recognized.  And,  in- 
deed, it  seems  obvious  that  the  opposite  contention  could  not  be 
thought  of.  A  proposed  rule  may  be  tested  by  inquiring  what  may 
be  done  with  it.  Suppose  the  divergence  here  had  been  150°  instead 
of  15°,  the  dip  being  at  a  small  angle  from  the  plane  of  the  horizon; 
the  statutory  limitation  upon  the  length  which  could  be  taken  on 
the  lode  would  be  a  farce,  even  were  the  ledge  the  ideal  ledge  of 


EXTRALATERAL    RIGHTS    UNDER    ACT    1866.  42/ 

miners.  The  Pioneer  would  soon  have  extended  itself  to  the  entire 
length  of  the  lode. 

I  think  the  law  of  1872,  instead  of  extending  the  rights  of  locators 
under  the  law  of  1866  along  the  lode,  expressly  limits  them  in  that 
respect  to  the  rights  they  had  under  the  previous  laws.  Section  2 
provides :  "Mining  claims  upon  veins  or  lodes  *  *  *  hereto- 
fore located  shall  be  governed,  as  to  length  on  the  vein  or  lode,  by 
the  customs,  regulations  and  laws  in  force  at  the  date  of  their  loca- 
tion." These  words  themselves,  in  my  opinion,  are  sufficient  to  sup- 
port the  declaration  of  the  court  in  the  Eureka  Case.  Speaking  of 
the  limitations  provided  in  section  3  of  the  act  of  1872,  which  I  have 
noticed,  of  lodes  to  planes  through  the  end  lines  [Judge  Field  there 
said]  :  "The  act  in  terms  annexes  these  conditions  to  the  possession, 
not  only  of  claims  subsequently  located,  but  to  the  possession  of  those 
previously  located.  This  fact,  taken  in  connection  with  the  reserva- 
tion of  all  rights  acquired  under  the  act  of  1866,  indicates  that  in  the 
opinion  of  the  legislature  no  change  was  made  in  the  rights  of  the 
previous  locators  by  confining  their  claims  within  the  end  lines.  The 
act  simply  recognized  a  pre-existing  rule  applied  by  miners  to  a 
single  vein  or  lode  of  the  locator,  and  made  it  applicable  to  all  veins 
or  lodes,  found  within  the  surface  lines."  This  proposition  is  sub- 
stantially reiterated  in  Iron  Silver  Min.  Co.  v.  Elgin  Mining  &  Smelt- 
ing Co.,  118  U.  S.  196,  6  Sup.  Ct.  1 177,  30  L.  Ed.  98,  and  in  many 
other  cases,  including  the  latest  to  which  our  attention  has  been  called 
(Walrath  v.  Champ'ion,  171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed. 
170). 

It  remains  but  to  add  on  this  point  that  the  patent  under  which 
plaintiff  claims  only  grants  of  the  discovery  lode  1,589.94  linear  feet 
"of  the  said  Pioneer  quartz  vein,  lode,  ledge  or  deposit,  as  herein- 
before described,  throughout  its  entire  depth  ;**-:=  provided, 
that  the  right  of  possession  to  such  outside  parts  of  said  veins,  lodes, 
ledges;  or  deposits  shall  be  confined  to  such  portions  thereof  as  lie 
between  vertical  planes  drawn  downward  through  the  end  lines  of 
said  survey  at  the  surface,  so  continued  in  their  own  direction,"  etc. 
And  in  the  habendum  is  added,  as  a  condition,  "that  the  grant  hereby 
made  is  restricted  to  the  land  hereinbefore  described  as  lot  No.  forty- 
eight  (48),  with  fifteen  hundred  and  eighty-nine  and  94-100  linear 
feet  of  the  Pioneer  quartz  vein,  lode,  ledge,  or  deposit,  throughout 
its  entire  depth,"  etc.  I  think  it  clear  that  there  is  no  attempt  here 
to  convey  all  within  planes  passing  through  the  end  line,  if  such 
planes  would  at  any  depth  include  more  than  the  amount  specifically 
defined  on  the  strike  of  the  lode. 

Upon  this  conclusion  that  a  patent  to  a  location  with  end  lines  di- 
verging in  the  direction  of  the  strike  does  not  convey  all  within  those 
planes,  but,  at  the  most,  not  more  than  the  stated  number  of  feet  on 
the  lode,  at  any  given  depth,  the  appellant  contends  that  such  patent 
Sfrants  no  extralateral  rights  at  all.    Such  would  be  the  law  if  the 


428  SUB-SURFACE   RIGHTS, 

location  were  under  the  law  of  1872,  and,  as  the  patent  to  the  Pioneer 
was  issued  after  that  law  took  effect,  counsel  contends  that  it  is  sub- 
ject to  its  requirement  that  the  end  lines  must  be  parallel  or  the 
patentee  has  no  extralateral  rights.  Another  objection  is  that  there 
is  no  description  of  the  segment  of  the  lode  which  extends  beyond 
the  surface  location,  and  no  grant  can  be  effectual  which  does  not 
define  the  thing  granted.  Parallel  end  lines  were  not  required  in  loca- 
tions by  the  law  of  1866,  and  yet  extralateral  rights  were  specifically 
given.  The  act  refers  to  rules  and  regulations  made  by  miners,  but 
it  is  not  said  that  any  such  rules  required  parallel  end  lines.  It  is 
claimed  in  argument  that  such  was,  in  general,  the  custom  of  miners, 
but  it  is  not  even  contended  that  there  was  such  a  custom  in  Amador 
county,  and  all  the  patents  shown  in  this  case  lack  such  parallelism. 

I  think  it  would  have  been  competent  for  congress  in  the  law  of 
1872  to  have  required  parties  who  had  equitable  rights  to  patents 
to  cause  such  adjustments  of  their  surface  lines  as  would  indicate 
and  define  their  extralateral  rights ;  in  other  words,  to  have  made 
their  end  lines  parallel  before  a  patent  would  issue,  on  pain  of  losing 
all  extralateral  rights.  There  are  no  such  provisions  in  the  act  of 
1872,  but  the  rights  of  locators  under  former  laws  are  expressly  con- 
firmed to  them.  The  presumption  is  very  strong  against  forfeiture, 
and  against  such  construction  of  any  law  as  would  work  a  forfeiture. 
The  language  of  an  act  to  have  such  effect  must  be  very  plain,  or 
the  court  will,  if  possible,  give  a  construction  to  it  that  would  not 
have  that  effect. 

It  is  admitted  that  such  extralateral  rights  are  recognized  and  as- 
serted in  the  Eureka  Case,  and  I  think  the  language  used  by  Judge 
Field  in  Iron  Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co.,  118 
U.  S.  196,  6  Sup.  Ct.  1 177,  30  L.  Ed.  98  (the  Horseshoe  Case),  is 
equally  clear  upon  this  matter:  "Under  the  act  of  1866  (14  Stat. 
251),  parallelism  in  end  lines  of  a  surface  location  was  not  required, 
but,  where  a  location  has  been  made  since  the  act  of  1872,  such  par- 
allelism is  essential  to  the  existence  of  any  right  in  the  locator  or 
patentee  to  follow  his  vein  outside  of  the  vertical  planes  down 
through  the  side  lines."  This  very  clearly  implies  that  a  locator  un- 
der the  act  of  1866  has  such  right,  although  his  end  lines  are  not 
parallel.  In  many  other  cases  the  same  thing  is  implied.  Del  Monte 
Min.  &  Mill.  Co.  v.  Last  Chance  Min.  &  Mill.  Co.,  171  U.  S.  55,  18 
Sup.  Ct.  895,  43  L.  Ed.  72;  Walrath  v.  Mining  Co.  (C.  C.)  63  Fed. 
552 ;  Id.,  171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 

We  come,  then,  to  the  other  phase  of  the  question :  Can  it  be  de- 
termined as  matter  of  law,  from  the  patent  or  the  complaint,  what 
segment  of  the  dip,  if  any,  the  plaintiff  acquired  by  his  location  or 
patent  ?  It  is  admitted,  or  rather  contended,  l)v  counsel  on  both  sides 
that  the  court  cannot  construct  end  lines.  If  the  court  is  to  adjudge 
that  plaintiff  is  entitled  to  follow  the  dip  beyond  his  lines,  it  must 
find  some  mode  of  limiting  the  right  along  the  vein,  and  that  limita- 


EXTRALATERAL    RIGHTS    UNDER   ACT    1866.  429 

tion  must  result  as  matter  of  law  from  the  patent,  when  the  neces- 
sary facts  are  shown  as  to  the  property  it  attempts  to  convey ;  that 
is,  as  to  the  course  and  dip  of  the  lode. 

The  contention  of  the  parties  in  regard  to  this  matter  is  shown 
upon  the  diagram.  Of  course,  it  is  understood  that  plaintiff  contends 
for  all  included  between  planes  drawn  through  its  end  lines,  although 
they  diverge,  and  would  inevitably  extend  his  rights  along  the  strike, 
while  defendant  contends  that  because  of  such  divergence  plaintiff 
has  no  extralateral  rights.  But  each  party  has  an  alternative  theory, 
in  case  its  primary  contention  is  not  sustained.  Plaintiff  says,  if 
planes  through  its  end  lines  do  not  control,  then  planes  are  indicated 
between  lines  perpendicular  to  the  general  course  of  the  lode. 

Defendant's  alternative  is  that,  as  the  southern  end  line  constitutes 
the  initial  line  in  the  survey,  it  necessarily  follows  from  the  require- 
ment of  parallel  end  planes  that  the  northern  end  line  shall  be  par- 
allel to  it ;  that  by  locating  and  fixing  the  southern  end  line  first  the 
northern  end  line  was  thereby  also  definitely  and  finally  located. 
These  theories  are  shown  in  the  diagram.  3-5  is  the  southern  end 
line  continued;  1-6  is  a  parallel  line  from  the  northern  end  of  the 
lode.  This  shows  defendant's  theory.  These  lines  would  give  the 
ore  in  dispute  to  defendant.  The  lines  suggested  by  plaintiff  are  1-2 
and  3-4.  These  are  at  right  angles  to  the  general  course  of  the  lode, 
and  planes  descending  through  them  would  give  the  ore  to  plaintiff. 
The  line  B-B',  is  the  northern  end  line  continued,  and  between  that 
line  and  3-5  is  plaintiff's  first  contention,  which  we  have  considered. 

I  am  not  referred  to  any  authorities  which  support  the  contention 
of  appellant  that  the  southern  end  line  must  be  considered  as  the 
basis  from  which  the  surface  form  of  the  location  was  projected.  As 
stated,  the  argument  is  that,  having  been  first  located,  it  followed,  as 
matter  of  law,  that  the  other  end  line  must  be  in  the  same  direction 
in  order  that  end  lines  may  parallel.  But  the  location  was  made,  sur- 
veyed, and  the  land  paid  for,  and  application  made  for  the  patent, 
before  tlie  law  of  1872  was  enacted.  The  act  of  1866  did  not  require 
parallel  end  lines  to  insure  extralateral  rights,  or  at  all.  There  was 
therefore  no  implication  that  the  second  end  line  should  be  parallel 
to  that  first  established.  It  was  not  an  absolute  necessity,  that  by  a 
naked  description  one  end  line  should  be  described  before  the  other. 
A  side  having  been  located,  one  sentence  could  have  created  both  end 
lines  from  each  end,  and  at  right  angles  to  the  side  line,  in  a  certain 
direction.  No  such  general  rule,  therefore,  applicable  to  all  cases 
could  be  adopted.  Planes  so  constructed  could  not  result  as  matter 
of  law. 

Planes  through  the  lode  at  the  end  lines  of  the  location,  at  right 
angles  to  the  general  course,  would  impose  the  required  limitation 
upon  the  rights  of  the  locator  along  the  lode.  The  rule  that  they  must 
be  so  constructed  would  be  universally  applicable ;  at  least,  theoreti- 
cally.   The  congressional  system   for  the   sale  of  mineral  lands  is 


430  SUB-SURFACE    RIGHTS. 

founded  upon  the  proposition  that  the  course  of  the  lode  can  be 
traced.  That  nature,  in  her  infinite  variety,  does  not  always  so  de- 
posit her  mineral  gifts,  is  unfortunate ;  but  I  think,  in  construing  the 
law,  we  may  have  regard  to  the  views  of  the  lawmakers  in  regard  to 
its  subject,  however  crude  and  inadequate  such  views  were.  The  law 
of  1866  is  said  to  have  been  but  a  crystallization  of  the  rules  and  cus- 
toms of  the  miners.  The  first  lodes  worked  were,  I  think,  nearly  in 
a  uniform  direction.  The  individual  claims  were  short,  usually  200 
feet.  Under  such  circumstances,  it  was  not  difficult  to  appropriate 
to  each  his  number  of  feet  on  the  dip  at  any  depth.  In  California 
mines  such  claims  were  very  often  consohdated  and  disputes  avoided. 
Often,  as  on  the  Comstock  lode,  the  miners  agreed  upon  a  base  line 
from  which  the  surface  form  of  locations  were  projected,  or  to  which 
they  were  adjusted.    This  would  result  in  parallel  end  fines. 

The  general  practice,  I  think,  was  to  have  their  claims  bounded, 
so  far  as  the  lode  was  concerned,  by  parallel  end  lines,  whatever 
might  be  the  form  of  their  surface  location.  In  fact,  they  adopted 
the  idea  put  forth  by  Judge  Field  in  the  Eureka  case.  Their  rights 
on  the  lode  were  limited  to  planes  at  the  limit  of  their  right  to  the 
lode  on  the  surface,  at  right  angles  to  the  general  course  of  the  lode. 
The  Eureka  Case  is  perhaps  the  only  express  authority  for  this  prop- 
osition, but  I  do  not  find,  as  claimed  by  the  learned  counsel  for  the 
appellant,  that  it  has  been  repudiated  by  later  cases.  On  the  contrary, 
these  cases  which  imply  extralateral  rights  when  the  end  lines  are 
not  parallel  seem  to  concede  this  rule.  I  am  unable  to  understand 
Walrath  v.  Mining  Co.,  171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed. 
170,  upon  any  other  theory.  There  was  liberty  of  surface  form 
under  the  act  of  1866,  but  the  law  strictly  confined  the  right  on  the 
vein  below  the  surface.  This  accords  both  with  the  Eureka  Case 
and  the  Flagstaff  Case,  98  U.  S.  463,  25  L.  Ed.  253.  In  the  latter 
case  it  was  said :  "But  our  laws  have  attempted  to  establish  a  rule 
by  which  each  claim  shall  be  so  many  feet  of  the  vein  lengthwise 
of  its  course  to  any  depth  below  the  surface,  although  laterally  its 
inclination  shall  carry  it  ever  so  far  from  a  perpendicular."  But 
rights  on  the  strike  were  limited  by  the  surface  lines  of  the  location 
under  both  laws.  Judge  Field  was  familiar  with  the  mining  cus- 
toms and  laws.  I  have  no  doubt  he  expressed  in  the  Eureka  Case 
what  had  been  and  was  the  universal  understanding  and  practice  of 
miners.  The  rule  there  declared  seems  to  me  reasonable,  and,  in 
fact,  the  only  one  that  can  be  applied  to  such  patents  issued  under 
locations  made  before  the  law  of  1872  came  into  existence.  If,  as 
suggested,  the  officers  of  the  land  office  usually  adjust  and  make  the 
end  lines  of  locations  parallel  before  issuing  the  patent,  such  patents, 
when  issued,  will  be  conclusive  evidence  that  such  also  was  the  loca- 
tion. 

A  case  has  been  cited  in   which  the   end   lines  of  the   location 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  43I 

converge  in  the  direction  of  the  dip.  Carson  City  Gold  &  Silver 
Min.  Co.  V.  North  Star  Min.  Co.  (C.  C.)  73  Fed.  597.  It  was  held 
that  the  locator  had  extralateral  rights  because  the  conveyance  would 
give  less  rather  than  more  on  the  dip  of  the  vein.  This  may  be  all 
right,  as  it  seems  to  me,  however,  not  because  the  patent  carries  less 
rather  than  more  than  would  pass  had  the  end  lines  been  parallel, 
but  because  that  which  is  granted  is  described  so  that  it  can  be 
definitely  located.  Under  the  force  of  the  restriction  contained  in 
section  3  of  the  law  of  1872,  the  locator  could  not  take  beyond 
planes  through  his  end  lines.  This  confined  him,  within  well-defined 
boundaries,  to  less  on  the  dip  below  the  surface  than  he  had  upon 
the  surface.  If  this  was  an  attempt  to  construe  the  act  of  1872,  the 
logic  niight  be  questioned.  That  act,  as  construed,  does  not  grant 
extralateral  rights  because  the  end  lines  are  parallel  or  converge 
towards  the  dip  of  the  vein,  but  if  they  are  parallel.  The  location 
there  under  consideration  was  made  under  the  act  of  1866,  and  car- 
ries extralateral  rights  because  the  extent  of  such  rights  is  definitely 
described.  At  least,  such  was  the  fact,  and  no  other  reason  was  re- 
quired. It  was  therefore  not  necessary  in  that  case  to  consider  the 
point  here  under  debate.  If  this  position  be  correct,  the  complaint 
does  definitely  describe  the  segment  of  the  lode  from  which  the  ore 
was  taken.    The  judgment  is  affirmed.* 


Section  4. — Extralateral  Rights  Under  the  Act  of  1872. 

(a)   The  Relation  of  Veins  to  End  Lines  and  to  Side  Lines. 

FLAGSTAFF    SILVER    MIN.    CO.    v.    TARBET. 

1879..    Supreme  Court  of  the  United  States.     98  U.  S.  463, 

25  L.  ed.  253. 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  was  an  action  in  the  nature  of  trespass  quare  clausum  fregit, 
brought  in  the  District  Court  of  the  Territory  of  Utah  for  the  Third 
District,  by  Alexander  Tarbet,  and  continued  by  his  assignee,  Helen 
Tarbet,  against  the  Flagstafif  Silver  Mining  Company  of  Utah  (lim- 
ited), and  other  persons.     The  action  having  been  dismissed  as  to 

*  In  East  Central  Eureka  Min.  Co.  v.  Central  Eureka  Min.  Co.,  204  U.  S. 
266,  51  L.  ed.  476,  27  Sup.  Ct.  258,  it  was  held  that  the  requirement  of  paral- 
lelism of  end  lines  made  by  the  act  of  1872  did  not  apply  to  a  location  under 
the  act  of  1866  which  had  so  far  advanced  to  patent  when  the  act  of  1872  was 
passed  that  adverse  claims  were  excluded. 


432  SUB-SURFACE    RIGHTS. 

Other  persons,  judgment  was  rendered  for  $45,(X)0  damages  upon 
the  verdict  of  a  jury  against  the  company.  The  latter  carried  the 
case  to  the  Supreme  Court  of  the  Territory,  where  the  judgment 
was  affirmed  on  the  3d  day  of  June,  1878.  The  company  thereupon 
sued  out  this  writ  of  error. 

The  controversy  relates  to  the  working  of  a  mine  in  Little  Cot- 
tonwood Mining  District  in  the  County  of  Salt  Lake.  The  de- 
fendant in  error  claims  to  own,  and  to  have  been  in  possession 
of,  a  mining  location  on  the  lode  called  the  Titus  Lode,  the 
location  including  three  claims,  and  extending  six  hundred  feet 
westwardly  from  the  discovery,  with  a  width  of  200  feet,  and 
including  ten  feet  on  the  east  side  of  the  discovery  belonging  to 
the  South  Star  mine.  The  plaintiffs  in  error  owned  and  had  a 
patent  for  another  mining  location,  called  the  Flagstaff  mine, 
100  feet  in  width  and  2,600  feet  in  length,  running  in  a  north- 
erly and  southerly  direction,  and  crossing  the  Titus  claims  near 
the  west  end  thereof,  and  nearly  at  right  angles  therewith.  In 
working  from  the  Flagstaff  mine  the  plaintiff's  in  error  worked 
around  subterraneously,  to  a  point  some  300  feet  to  the  east  of 
their  location,  and  on  the  north  side  of  the  Titus  mine,  and  within 
about  100  feet  of  the  Titus  location.  It  is  for  this  working  that 
the  suit  was  brought;  and  the  principal  question  is,  whether  the 
plaintiff  in  error  had  a  right  thus  to  work  outside  of  its  location  on 
the  east,  and  whether,  in  doing  so,  it  interfered  with  the  rights  of 
the  defendant  in  error. 

It  is  conceded  that  both  parties  are  working  on  the  same  lode  or 
vein  of  ore.  The  Flagstaff  discovery,  to  which  the  location  of  the 
plaintiff  in  error  relates  as  its  starting  point,  is  situated  nearly 
due  west  from  that  of  the  South  Star  and  Titus,  and  about  550 
feet  therefrom.  The  lode  crops  out  at  the  two  points  of  discovery, 
but  is  not  visible  at  intermediate  points.  These  croppings,  how- 
ever, show  that  the  direction  or  course  of  the  apex  of  the  vein, 
at  or  near  the  surface,  is  nearly  east  and  west.  The  location  of  the 
Titus,  claimed  by  the  defendant  in  error,  nearly  corresponds  with 
this  surface  course  of  the  vein.  The  location  of  the  Flagstaff,  be- 
longing to  the  plaintiffs  in  error,  crosses  it  nearly  at  right  angles. 

The"  principal  difficulty  in  the  case  arises  from  the  fact  that  the 
surface  is  not  level,  but  rises  up  a  mountain  in  going  from  the 
Titus  discovery  to  the  Flagstaff.  The  dip  of  the  vein  being  north- 
easterly, it  happens  that,  by  following  a  level  beneath  the  surface, 
the  strike  of  the  vein  runs  in  a  northwesterly  direction,  or  about 
north  50°  west.  In  other  words,  if  by  a  process  of  abrasion  the 
mountain  could  be  ground  down  to  a  plain,  the  strike  of  the  vein 
would  be  northwest  instead  of  west,  as  it  now  is  on  the  surface; 
or,  at  least,  as  the  evidence  tended  to  show  that  it  is.  In  that  case, 
the  location  of  the  defendant  in  error  would  leave  the  vein  to  its 


EXTRALATERAL   RIGHTS    UNDER   ACT    1872.  433 

right,  and  the  location  of  the  plaintiff  in  error  would  not  reach  it  un- 
til several  hundred  feet  to  the  north  of  the  Flagstaff  discovery. 

Evidence  being  given  pro  and  con  in  reference  to  the  condition 
and  situation  of  the  vein,  both  at  and  below  the  surface,  and  to  the 
workings  thereon  by  both  parties,  the  judge  charged  the  jury 
as  follows : 

"If  you  find  that  Alexander  Tarbet,  during  the  time  mentioned 
in  the  complaint,  to-wit:  from  January  i,  1873,  to  December  14,  1875 
(being  a  period  of  2  years,  11  months  and  14  days),  was  in  possession 
of  the  whole  or  an  undivided  interest  of  Nos.  i,  2  and  3  of  the  Titus 
mining  claim,  and  ten  feet  off  No.  i  of  the  South  Star  mining 
claim,  holding  the  same  in  accordance  with  the  mining  laws  and 
the  customs  of  the  miners  of  the  mining  district,  and  that  the 
apex  and  course  of  the  vein  in  dispute  is  within  such  surface, 
then,  as  against  one  subsequently  entering,  he  is  deemed  to  be 
possessed  of  the  land  within  his  boundaries  to  any  depth,  and  also 
of  the  vein  in  the  surface  to  any  depth  on  its  dip,  though  the  vein 
in  its  dip  downward  passes  the  side  line  of  the  surface  boundary 
and  extends  beneath  other  and  adjoining  lands,  and  a  trespass 
upon  such  part  of  the  vein  on  its  dip,  though  beyond  the  side 
surface  line,  is  unlawful  to  the  same  extent  as  a  trespass  on  the 
vein  inside  of  the  surface  boundary.  This  possession  of  the  vein 
outside  of  the  surface  line,  on  its  dip,  is  limited  in  two  ways :  by 
the  length  of  the  course  of  the  vein  within  the  surface,  and  by 
an  extension  of  the  end  lines  of  the  surface  claim  vertically,  and 
in  their  own  direction,  so  as  to  intersect  the  vein  on  its  dip ;  and 
the  right  of  a  possessor  to  recover  for  trespass  on  the  vein  is 
subject  to  only  these  restrictions." 

Again:  "The  defendant  (plaintiff  in  error)  has  not  shown  any 
title  or  color  of  title  to  any  part  of  the  vein  except  so  much  of  its 
length  on  the  course  as  lies  within  the  Flagstaff  surface,  and  the 
dip  of  the  vein  for  that  length ;  and  it  has  shown  no  title  or  color 
of  title  to  any  of  the  surface  of  the  South  Star  and  Titus  mining 
claim,  except  to  so  much  of  No.  3  as  lies  within  the  patented  sur- 
face of  the  Flagstaff  mining  claim." 

The  court  refused  to  give  the  following  instructions  propounded 
by  the  plaintiff's  in  error,  to  wit:  "By  the  Act  of  Congress  of  July 
26,  1866,  under  which  all  these  locations  are  claimed  to  have  been 
made,  it  was  the  vein  or  lode  of  mineral  that  was  located  and 
claimed ;  the  lode  was  the  principal  thing,  and  the  surface  area  was 
a  mere  incident  for  the  convenient  working  of  the  lode ;  the  patent 
granted  the  lode,  as  such,  irrespective  of  the  surface  area,  which  an 
applicant  was  not  bound  to  claim ;  it  was  his  convenience  for  work- 
ing the  lode  that  controlled  his  location  of  the  surface  area ;  and  the 
patentee  under  that  Act  takes  a  fee  simple  title  to  the  lode,  to  the 
full  extent  located  and  claimed  under  said  Act." 

Secondly,  "In  the  very  nature  of  the  thing,  a  lode  or  vein,  in 

28 — Mining  L.\w 


434  SUB-SURFACE    RIGHTS. 

its  imworked  and  undeveloped  stage,  cannot  be  known  and  sur- 
veyed so  as  to  plat  it  and  make  a  diagram  of  it ;  the  law  does  not 
require  impossibilities,  and  must  receive  a  reasonable  construc- 
tion. The  diagram  required  to  be  filed  by  the  applicant  for  a 
patent  under  the  Act  of  1866  was  a  diagram  of  the  surface  area 
claimed ;  and  this  diagram  might  be  extended  laterally  and  other- 
wise, as  convenience  in  working  this  claim  might  suggest  to  the 
applicant." 

These  instructions  and  refusals  to  instruct  indicate  the  general 
position  taken  by  the  court  below,  namely :  that  a  mining  claim 
secures  only  so  much  of  a  lode  or  vein  as  it  covers  along  the  course 
of  the  apex  of  the  vein  on  or  near  the  surface,  no  matter  how 
far  the  location  may  extend  in  another  direction. 

The  plaintiff  in  error  has  made  the  following  assignment  of 
error,  which  indicates  the  position  which  it  contends  for : 

"The  plaintiff  in  error  assigns  for  error  the  charge  of  the  court 
and  the  refusal  to  give  its  requests,  that  is,  that  the  Judge  in- 
structed the  jury  that  the  defendant  below  had  shown  no  title 
or  color  of  title  to  any  part  of  the  vein  except  so  much  of  its  length 
on  its  course  as  lies  within  the  surface  ground  patented ;  and  that 
he  refused  to  direct  the  jury  that  by  the  Act  of  Congress  it  was 
the  vein  or  lode  of  mineral  that  was  located  and  claimed,  and  that 
the  patent  granted  the  lode  irrespective  of  the  surface  area,  which 
was  merely  for  the  convenience  of  working  the  lode ;  that  the 
diagram  required  to  be  filed  by  an  applicant  for  a  patent  was  of 
the  surface  claimed,  and  might  be  extended  laterally  or  otherwise, 
as  convenience  in  working  the  claim  might  suggest ;  that  the  sur- 
face ground  patented  does  not  measure  the  grantee's  right  to  the 
vein  or  lode  in  its  course,  or  control  the  direction  which  he  shall 
take;  and,  lastly,  that  the  Flagstaff  Company  have  the  right  to 
the  lode  for  the  length  thereof  claimed  in  the  location  notice, 
though  it  runs  in  a  different  direction  from  that  in  which  it  was 
supposed  to  run  at  the  time  of  the  location." 

Both  parties  agree  in  the  general  rule  that  the  owner  of  a  mining 
right  in  a  lode  or  vein  cannot  follow  the  course  of  the  vein  beyond 
the  end  lines  of  his  location  extended  perpendicularly  downwards, 
but  that  he  may  follow  the  dip  to  an  indefinite  distance  outside 
of  his  side  lines.  This  is  undoubtedly  the  general  rule  of  miners' 
law,  and  the  true  construction  of  the  Act  of  Congress.  The  lan- 
guage of  the  Act  of  1866  (14  Stat.  251)  in  relation  to  "a 
vein  or  lode"  is,  "That  no  location  hereafter  made  shall  exceed 
two  hundred  feet  in  length  along  the  vein  for  each  locator,  with 
an  additional  claim  for  discovery  to  the  discoverer  of  the  lode, 
with  the  right  to  follow  such  vein  to  any  depth,  with  all  its  dips, 
variations  and  angles,  together  with  a  reasonable  quantity  of  sur- 
face for  the  convenient  working  of  the  same  as  fixed  by  the  local 
rules,"  etc.     The  Act  of  1872   (17  id.  91),  is  more  explicit  in  its 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  435 

terms ;  ,  but  the  intent  is  undoubtedly  the  same,  as  it  respects 
end  Hnes  and  side  hnes,  and  the  right  to  follow  the  dip  outside  of 
the  latter.  We  think  that  the  intent  of  both  statutes  is,  that  min- 
ing locations  on  lodes  or  veins  shall  be  made  thereon  lengthwise, 
in  the  general  direction  of  such  veins  or  lodes  on  the  surface  of 
the  earth  where  they  are  discoverable ;  and  that  the  end  lines  are 
to  cross  the  lode  and  extend  perpendicularly  downwards,  and  to 
be  continued  in  their  own  direction  either  way  horizontally ;  and 
that  the  right  to  follow  the  dip  outside  of  the  side  lines  is  based 
on  the  hypothesis  that  the  direction  of  these  lines  corresponds  sub- 
stantially with  the  course  of  the  lode  or  vein  at  its  apex  on  or  near 
the  surface.  It  was  not  the  intent  of  the  law  to  allow  a  person  to 
make  his  location  crosswise  of  a  vein  so  that  the  side  lines  shall 
cross  it,  and  thereby  give  him  the  right  to  follow  the  strike  of  the 
vein  outside  of  his  side  lines.  That  would  subvert  the  whole  sys- 
tem sought  to  be  established  by  the  law.  If  he  does  locate  his  claim 
in  that  way,  his  rights  must  be  subordinated  to  the  rights  of  those 
who  have  properly  located  on  the  lode.  Their  right  to  follow  the 
dip  outside  of  their  side  lines  cannot  be  interfered  with  by  him. 
His  right  to  the  lode  only  extends  to  so  much  of  the  lode  as  his 
claim  covers.  If  he  has  located  crosswise  of  the  lode,  and  his  claim 
is  only  loo  feet  wide,  that  lOO  feet  is  all  he  has  a  right  to.  This 
we  consider  to  be  the  law  as  to  locations  on  lodes  or  veins. 

The  location  of  the  plaintiffs  in  error  is  thus  laid  across  the 
Titus  lode,  that  is  to  say,  across  the  course  of  its  apex  at  or  near 
the  surface ;  and  the  side  lines  of  the  location  are  really  the  end 
of  their  claim,  considering  the  direction  or  course  of  the  lode  at 
the  surface. 

As  the  law  stands,  we  think  that  the  right  to  follow  the  dip  of 
the  vein  is  bounded  by  the  end  lines  of  the  claim,  properly  so 
called  ;  which  lines  are  those  which  are  crosswise  of  the  general 
course  of  the  vein  on  the  surface.  The  Spanish  mining  law  con- 
fined the  owner  of  a  mine  to  perpendicular  lines  on  every  side, 
but  gave  him  greater  or  less  width  according  to  the  dip  of  the  vein. 
See,  Rockwell,  pp.  56-58,  and  pp.  274,  275.  But  our  laws  have  at- 
tempted to  establish  a  rule  by  which  each  claim  shall  be  so  many 
feet  of  the  vein,  lengthwise  of  its  course,  to  any  depth  below  the 
surface,  although  laterally  its  inclination  shall  carry  it  ever  so 
far  from  a  perpendicular.  This  rule  the  court  below  strove  to  carry 
out.  and  all  its  rulings  seem  to  have  been  in  accordance  with  it. 

The  plaintiff  in  error  contended,  and  requested  the  court  to 
charge,  in  effect,  that  having  received  a  patent  for  2,600  feet  in 
length  and  100  feet  in  breadth,  commencing  at  the  Flagstaff  dis- 
covery, on  the  lode  at  the  surface,  it  was  entitled  to  2,600  feet  of 
that  lode  along  its  length,  although  it  diverged  from  the  location 
of  the  claim,  and  went  off  in  another  direction.  We  cannot  think 
that  this  is  the  intent  of  the  law.     It  would  lead  to  inextricable 


436  SUB-SURFACE    RIGHTS. 

confusion.  Other  localities  correctly  laid  upon  the  lode,  and  com- 
ing up  to  that  of  the  plaintiff  in  error  on  either  side,  would,  by 
such  rule,  be  subverted  and  swept  away.  Slight  deviations  of  the 
outcropping  lode  from  the  location  of  the  claim  would  probably 
not  affect  the  right  of  the  locator  to  appropriate  the  continuous 
vein ;  but  if  it  should  make  a  material  departure  from  his  location, 
and  run  off  in  a  different  direction,  and  not  return  to  it,  it  certainly 
could  not  be  said  that  the  location  was  on  that  lode  or  vein  fur- 
ther than  it  continued  substantially  to  correspond  with  it.  Of 
what  use  would  a  location  be,  for  any  purpose  of  defining  the 
rights  of  parties,  if  it  could  be  thus  made  to  cover  a  lode  or  vein 
which  runs  entirely  away  from  it?  Though  it  should  happen  that 
the  locator,  by  sinking  shafts  to  a  considerable  depth,  might  strike 
the  same  vein  on  its  subterranean  descent,  he  ought  not  to  inter- 
fere with  those  who,  having  properly  located  along  the  vein,  are 
pursuing  their  right  to  follow  the  dip  in  a  regular  way.  So  far 
as  he  can  work  upon  it,  and  not  interfere  with  their  right,  he  might 
probably  do  so ;  but  no  farther.  And  this  consequence  would  follow 
irrespective  of  the  priority  of  the  locations.  It  would  depend  on  the 
question  as  to  what  part  of  the  vein  the  respective  locations  properly 
cover  and  appropriate. 

We  do  not  mean  to  say  that  a  vein  must  necessarily  crop  out 
upon  the  surface,  in  order  that  locations  may  be  properly  laid 
upon  it.  If  it  lies  entirely  beneath  the  surface,  and  the  course  of 
its  apex  can  be  ascertained  by  sinking  shafts  at  different  points, 
such  shafts  may  be  adopted  as  indicating  the  position  and  course 
of  the  vein ;  and  locations  may  be  properly  made  on  the  surface 
above  it,  so  as  to  secure  a  right  to  the  vein  beneath.  But  where 
the  vein  does  crop  out  along  the  surface,  or  is  slightly  covered  by 
foreign  matter  that  the  course  of  its  apex  can  be  ascertained  by 
ordinary  surface  exploration,  we  think  that  the  Act  of  Congress 
requires  that  this  course  should  be  substantially  followed  in  laying 
claims  and  locations  upon  it.  Perhaps  the  law  is  not  so  perfect 
in  this  regard  as  it  might  be ;  perhaps  the  true  course  of  a  vein 
should  correspond  with  its  strike,  or  the  line  of  a  level  run  through 
it ;  but  this  can  rarely  be  ascertained  until  considerable  work  has 
been  done,  and  after  claims  and  locations  have  become  fixed.  The 
most  practicable  rule  is  to  regard  the  course  of  the  vein  as  that 
which  is  indicated  by  surface  outcrop,  or  surface  explorations  and 
workings.  It  is  on  this  line  that  claims  will  naturally  be  laid, 
whatever  be  the  character  of  the  surface,  whether  level  or  in- 
clined. 

If  these  views  are  correct,  the  Titus  claims,  belonging  to  the 
defendant  in  error,  were  located  along  the  vein  or  lode  in  ques- 
tion in  a  proper  manner ;  and  the  Flagstaff  claims,  belonging  to 
the  plaintiff  in  error,  were  located  across  it,  and  can  only  give 
the  latter  a  right  to  so  much  of  the  vein  or  lode  as  is  included 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  437 

between  their  side  line.     The   court  below  took  substantially  this 
view  of  the  subject,  and  ruled  accordingly. 

As  this  is  really  the  whole  controversy  in  the  case,  it  is_  un- 
necessary to  examine  more  minutely  the  different  points  of  the 
charge  or  the  instructions  asked  for  by  the  plaintiff  in  error.  The 
question  was  presented  in  different  forms,  but  all  to  the  same  gen- 
eral purport.  Judgment  aitrmed." 


KING  V.  AMY  &  SILVERSMITH  CONSOLIDATED  MIN.  CO! 

1S94.     Supreme  Court  of  the  United  States.     152  U.  S.  222, 
38  L.  ed.  419,  14  Sup.  Ct.  510. 

Appeal  from,  and  in  error  to,  the  supreme  court  of  the  state  of 

Montana.  .  . 

This  was  a  suit  by  Silas  F.  King  against  the  Amy  &  Silversmith 
Consolidated  Mining  Company  for  a  partition  of  the  Non-Consoli- 
dated mining  claim,  of  which  the  parties  are  tenants  in  common,  or, 
in  case  that  proved  impracticable,  for  a  sale  and  division  of  the  pro- 
ceeds, and  also  for  an  accounting  in  respect  to  certain  ores  alleged 
to  have  been  Avrongfully  taken  by  defendant  from  the  claim,  by 
following  the  dip  of  the  vein  through  the  side  line  of  the  Amy 
claim,  which  adjoined  the  Non-Consolidated  on  the  south.  The  apex 
of  the  vein  passed  out  of  the  north  side  of  the  Amy  into  the  Non- 
Consolidated,  and  the  trial  court  held  that  defendant  had  a  right  to 
follow  the  dip  through  the  vertical  plane  of  that  side  line  up  to  the 
point  where  it  intersected  a  vertical  plane  draAvn  at  right  angles 
across  the  vein  at  the  point  where  it  passed  out  of  the  Amy  claim. 
On. appeal  to  the  state  supreme  court,  this  judginent  was  reversed; 
that  court  holding  that  defendant's  right  to  follow  the  dip  was 
bounded  by  a  vertical  plane  parallel  with  the  end  lines  of  the  Amy 
location,  and  drawn  through  the  apex  of  the  vein  at  the  point  where 
it  passed  out  of  the  side  line  of  that  location.     See  24  Pac.  200. 

=  In  Argentine  Min.  Co.  v.  Terrible  M.  Co.  122  U.  S.  478,  30  L.  ed.  1140,  7 
Sup.  Ct.  1356,  1359,  Field,  J.,  for  the  court  said : 

"The  instruction  asked  assumes  that  the  longest  sides  of  its  claims  were 
their  side  lines.  Such  would  undoubtedly  be  the  case  if  the  locations  of  the 
claim  were  along  the  course  or  strike  of  the  lode.  The  statute  undoubtedly 
contemplates  that  the  location  of  a  lode  or  vein  claim  shall  be  along  the  course 
of  the  lode  or  vein.     *     *     *  ,    ,      ,    ,  •     • 

"When,  therefore,  a  mining  claim  crosses  the  course  of  the  lode  or  vein  in- 
stead of  being  'along  the  vein  or  lode,'  the  end  lines  are  those  which  meas- 
ure the  width  of  the  claim  as  it  crosses  the  lode.  Such  is  evidently  the  mean- 
ing of  the  statute.  The  side  lines  are  those  which  measure  the  extent  of  the 
claim  on  each  side  of  the  middle  of  the  vein  at  the  surface.  Such  is  the  pur- 
port of  the  decision  in  Mining  Co.  v.  Tarbet,  98  U.  S.  463." 


438 


SUB-SURFACE    RIGHTS. 


To  review  this  decision,  plaintiff  took  an  appeal,  and  also  sued  out 
a  writ  of  error  from  this  court. 

Mr,  Justice  Field  delivered  the  opinion  of  the  court. 

The  plaintiff  and  the  defendant  are  owners,  as  tenants  in  com- 
mon, of  certain  mining  property  in  Silver  Bow  county,  state  of  Mon- 
tana, known  as  the  "Non-Consolidated  Lode  Mining  Claim."  The 
plaintiff  owns  three-fourths  of  the  claim,  and  the  defendant  one- 
fourth.  The  defendant  is.  besides,  the  sole  owner  of  the  mining 
claim  situated  in  the  same  county  and  state,  known  as  the  "Amy 
Lode  Alining  Claim."  Both  claims  are  located  and  patented  under 
the  mining  laws  of  the  United  States  contained  in  sections  2320  and 
2322  of  the  Revised  Statutes.  The  Amy  claim  was  first  located, 
and  has  the  earlier  patent. 

The  relative  positions  of  these  two  claims  are  seen  on  the  dia- 
gram in  the  record,  which  shows  the  course  of  the  vein  in  the  Amy 
claim  upon  vv-hich  its  location  was  made,  and  the  boundaries  of  the 
two  claims,  with  the  length  and  direction  of  each.  The  description 
of  the  two  claims  can  be  understood  only  by  reference  to  the  dia- 
gram, as  each  line  is  given.  A  copy  of  the  diagram  is  here  produced, 
as  without  it  the  description  will  be  unintelligible  to  the  reader. 


The  Amy  claim  has  a  surface  length  of  1,470  feet,  and  its  side  lines 
are  parallel.  The  end  lines  are  each  491  feet,  and  they  are  also 
parallel.  The  surface  location  forms  a  parallelogram  of  1,470  feet 
running  easterly  and  westerly,  by  491  feet  running  northerly  and 
southerly. 

The  Non-Consolidated  claim  lies  adjoining  the  northwest  corner 
of  the  Amy  claim.  Its  surface  shape  is  that  of  a  triangle,  the  longest 
side  of  which  joins  the  northerly  side  of  the  Amy  claim,  and,  com- 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  439 

mencing  17  feet  from  the  northwest  corner  of  the  latter,  extends 
easterly  411  feet  in  length.  Its  northerly  side  line,  commencing  (on 
the  northerly  line  of  the  Amy)  at  the  point  where  the  first  line  ter- 
minates, runs  in  a  northwesterly  direction  372  feet  to  the  point  where 
it  meets  the  westerly  line  of  the  lode,  and  extends  southwesterly 
from  this  point  181  feet  to  the  place  of  beginning. 

The  vein  of  the  Amy  claim,  on  its  course  or  strike,  passes  through 
its  northerly  side  line,  as  marked  on  the  diagram,  into  the  Non- 
Consolidated  ground.  Its  apex  crosses  that  line  184  feet  easterly 
from  the  west  end  line  of  that  claim,  and  does  not  again  enter  the 
Amy  claim.  The  apex  of  the  vein  enters  the  south  side  of  the  Amy 
claim  at  a  point  within  600  feet  westerly  from  the  southeast  corner 
of  the  Amy,  and  the  dip  of  the  vein  is  to  the  north. 

We  have,  in  this  description  of  the  claims  in  controversy,  followed 
in  a  large  degree  that  given  in  the  brief  of  the  defendant's  counsel, 
for  the  subject  does  not  admit  of  greater  clearness  of  statement. 

The  plaintiff  has  brought  this  action  for  a  partition  of  the  Non- 
Consolidated  claim  with  the  defendant,  according  to  the  respective 
rights  of  the  parties,  if  that  be  possible,  but,  if  the  property  cannot 
be  thus  partitioned  advantageously,  then  for  a  sale  of  the  premises, 
and  a  division  of  the  proceeds  among  the  owners,  in  conformity  with 
such  rights. 

As  stated  above,  the  vein  of  the  Amy,  of  which  the  apex  lies 
within  the  surface  lines  of  the  claim,  in  its  course  passes  through 
the  northerly  side  line,  and  enters  the  Non-Consolidated  claim ;  and 
it  is  alleged' that  the  vein  has  been  there  worked  by  the  owners  of 
that  claim,  and  valuable  ore  taken  therefrom.  The  plaintifif,  there- 
fore, prays,  in  addition  to  a  partition  or  sale  of  the  Non-Consolidated 
claim,  for  an  accounting  for  his  share,  as  tenant  in  common  of  an 
undivided  three-fourths  of  that  claim,  of  the  ores  taken  from  the 
underground  workings  of  the  vein  of  the  Amy  after  it  had  passed 
into  that  claim,  if  any  there  were. 

The  defendant  admits  his  cotenancy  in  the  Non-Consolidated 
claim  with  the  plaintiff,  but  denies  the  taking  of  any  ore  from  the 
vein  of  the  Amv  after  it  had  passed  into  its  ground. 

The  first  question  for  determination  is  whether  the  Amy  retained 
any  right  to  the  vein,  the  apex  of  which  was  within  its  surface  lines, 
after  it  had  passed  through  its  northerly  side  line,  or  rather  through 
the  vertical  plane  running  down  that  line.  If  the  Amy  retained  its 
right  to  that  vein  after  it  had  entered  the  ground  of  the  Non-Con- 
solidated claim,  it  belonged  to  the  defendant  as  sole  owner  of  the 
Amy ;  and.  as  such  owner,  he  could  not  be  called  on  to  account  to  the 
plaintiff  for  any  portion  of  the  ores  taken  from  it.  If.  on  the  other 
hand,  the  Amy  did  not  retain  its  right  to  that  portion  of  the  vein 
after'  it  had  passed  into  the  Non-Consolidated  claim,  it  became  a 
part  of  that  claim ;  and  the  proceeds  of  the  ore  there  taken  from  it 


440  SUB-SURFACE    RIGHTS. 

would,  with  other  proceeds  of  the  Non-ConsoHdated  claim,  be  the 
subject  of  an  accounting  between  the  plaintiff  and  the  defendant, 
the  owners,  as  tenants  in  common  of  that  claim.  The  answer  to  the 
question  must  be  found  in  the  construction  given  to  section  2322  of 
the  Revised  Statutes,  which  took  effect  December  i,  1873.  That 
section  is  as  follows  : 

"The  locators  of  all  mining  locations  heretofore  made,  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge  situated 
on  the  public  domain,  their  heirs  and  assigns,  where  no  adverse  claim 
exists  on  the  loth  day  of  May,  1872,  so  long  as  they  comply  with 
the  laws  of  the  United  States,  and  with  state,  territorial,  and  local 
regulations  not  in  conflict  with  the  laws  of  the  United  States,  govern- 
ing their  possessory  title,  shall  have  the  exclusive  right  of  possession 
and  enjoyment  of  all  the  surfaces  included  within  the  lines  of  their 
locations,  and  of  all  veins,  lodes  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically,  although  such  veins,  lodes,  or  ledges 
may  so  far  depart  from  a  perpendicular  in  their  covirse  downward 
as  to  extend  outside  the  vertical  side  lines  of  such  surface  locations. 
But  their  right  of  possession  to  such  outside  parts  of  such  veins  or 
ledges  shall  be  confined  to  such  portions  thereof  as  lie  between  ver- 
tical planes  drawn  downward  as  above  described,  through  the  end 
lines  of  their  locations,  so  continued  in  their  own  direction  that  such 
planes  will  intersect  such  exterior  parts  of  such  veins  or  ledges." 

The  preceding  section  (2320)  prescribes  the  extent  to  which  min- 
ing claims  upon  veins  or  lodes  of  quartz,  or  other  rock  in  place,  bear- 
ing gold,  silver,  or  other  valuable  deposits,  on  lands  of  the  United 
States,  may  be  taken  up  after  May  10,  1872.  It  allows  a  claim  to 
be  located  to  the  extent  of  1,500  feet  along  the  vein  or  lode,  but  pro- 
vides that  no  location  shall  be  made  until  the  discovery  of  the  vein 
or  lode  within  the  limits  of  the  claim  located,  which  is,  in  effect,  a 
declaration  that  locations  resting  simply  upon  a  conjectural  or  im- 
aginary existence  of  a  vein  or  lode  within  their  limits  shall  not  be 
permitted.  A  location  can  only  rest  upon  an  actual  discovery  of  the 
vein  or  lode. 

The  section  also  declares  that  no  claim  shall  extend  more  than  300 
feet  on  each  side  of  the  middle  of  the  vein  at  the  surface,  nor  shall 
any  claim  be  limited  by  any  mining  regulation  to  less  than  25  feet 
on  each  side  of  the  middle  of  the  vein  at  its  surface,  except  as  pre- 
vented by  adverse  rights  existing  on  the  loth  day  of  May,  1872,  and 
that  the  end  lines  of  each  claim  shall  be  parallel  to  each  other.  A 
claim  located  in  conformity  with  the  provisions  of  this  section  would 
take  the  form  of  a  parallelogram,  if  the  course  or  strike  of  the  vein 
or  lode  should  run  in  a  straight  line ;  but  such  veins  and  lodes  are 
often  found,  upon  explorations,  to  run  in  a  course  deviating  at  dif- 
ferent points  from  such  line,  and  from  this  circumstance  much  diffi- 
culty often  arises,  in  determining  the  lateral  rights  of  the  locators. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  44I 

Section  2324  of  the  Revised  Statutes  recognizes  the  power  of  min- 
ers in  each  mining  district  to  make  regulations  not  in  conflict  with 
the  laws  of  the  United  States,  or  of  the  laws  of  the  state  or  terri- 
tory in  which  the  district  is  situated,  governing  the  location,  man- 
ner of  locating,  and  amount  of  work  necessary  to  hold  possession  of 
a  mining  claim,  subject  to  the  requirement  that  the  location  must  be 
distinctly  marked  on  the  ground,  so  that  its  boundaries  may  be  read- 
ily traced. 

It  is  evident  from  the  provisions  cited  that  the  location,  as  made 
and  defined,  must  control,  not  only  the  rights  of  the  claimant  to  the 
vein  or  lode  within  its  surface  lines,  but  also  any  lateral  rights. 

Section  2322,  cited  above,  declares  that  the  locators  of  all  mining 
locations  shall  have  the  exclusive  right  of  possession  and  enjoyment 
of  all  the  surface  included  within  the  lines  of  their  location,  and  also 
the  exclusive  right  of  possession  and  enjoyment  of  all  veins,  lodes, 
and  ledges  throughout  their  entire  depth,  the  tox  or  apex  of  which 
lies  inside  of  such  surface  lines  extended  downward  vertically,  al- 
though such  veins,  lodes,  and  ledges  may  so  far  depart  from  a  per- 
pendicular in  their  course  downward  as  to  extend  outside  the  vertical 
side  lines  of  said  surface  location.  The  surface  side  lines,  extended 
downward  vertically,  therefore,  determine  the  extent  of  the  claim, 
except  when,  in  its  descent,  the  vein  passes  outside  of  them,  and  the 
outside  portions  are  to  lie  between  vertical  planes  drawn  downward 
through  the  end  lines. 

The  difficulty  in  the  present  case  arises  from  the  course  of  the  vein 
or  lode  upon  which  the  Amy  location  was  made.  It  is  evident  that 
what  are  called  "side  lines"  of  the  location,  as  shown  in  the  diagram, 
are  not  such,  in  fact,  but  are  end  lines.  Side  lines,  properly  drawn, 
would  run  on  each  side  of  the  course  of  the  vein  or  lode  distant  not 
more  than  300  feet  from  the  middle  of  such  vein.  In  the  Amy 
claim,  the  lines  marked  as  side  lines  cross  the  course  of  the  strike 
of  the, vein,  and  do  not  run  parallel  with  it.  They  therefore  con- 
stitute end  lines.  It  is  trtie  the  lines  are  not  drawn  with  the  strict 
care  and  accuracy  contemplated  by  the  statute,  and  which  could  only 
have  been  done  with  more  perfect  knowledge  of  the  true  course  or 
strike  of  the  vein,  from  further  developments.  But  as  was  said  by 
this  court  in  Iron  Silver  Min.  Co.  v.  Elgin  Min.  ,&  Smelting  Co., 
118  U.  S.  196,  207,  6  Sup.  Ct.  1 177:  "If  the  first  locator  will  not  or 
cannot  make  the  explorations  necessary  to  ascertain  the  true  course 
of  the  vein,  and  draws  his  end  lines  ignorantly,  he  must  bear  the 
consequences."  The  court  cannot  become  a  locator  for  the  mining 
claimant,  and  do  for  him  what  he  alone  should  do  for  himself.  The 
most  that  the  court  can  do.  where  the  lines  are  drawn  inaccurately 
and  irregularly,  is  to  give  to  the  miner  such  rights  as  his  imperfect 
location  warrants,  under  the  statute.     It  cannot  relocate  his  claim, 


442  SUB-SURFACE    RIGHTS. 

and  make  new  side  lines  or  end  lines.  Where  it  finds,  as  in  this  case, 
that  what  are  called  "side"  lines  are  in  fact  "end"  lines,  the  court 
in  determining  his  lateral  rights,  will  treat  such  side  lines  as  end 
lines,  and  such  end  lines  as  side  lines;  but  the  court  cannot  make 
a  new  location  for  him,  and  thereby  enlarge  his  rights.  He  must 
stand  upon  his  own  location,  and  can  take  only  what  it  will  give  him 
under  the  law. 

Acting  upon  this  principle,  there  is  no  lateral  right  to  the  holder 
of  the  Amy  claim,  by  which  he  can  follow  its  vein  into  the  Non- 
Consolidated  claim.  Mistakes  in  drawing  the  lines  of  a  location  can 
only  be  avoided,  as  said  in  the  case  cited,  by  postponing  the  marking 
of  the  boundaries  until  sufficient  explorations  are  made  "to  ascertain, 
as  near  as  possible,  the  course  and  direction  of  the  vein.  *  *  * 
Even  then,"  the  court  added,  "with  all  the  care  possible,  the  end 
lines  marked  on  the  surface  will  often  vary  greatly  from  a  right 
angle  to  the  true  course  of  the  vein  ;  but,  whatever  inconvenience  or 
hardship  may  thus  happen,  it  is  better  that  the  boundary  planes 
should  be  definitely  determined  by  the  lines  of  the  surface  location 
than  that  they  should  be  subjected  to  perpetual  readjustment  accord- 
ing to  subterranean  developments  subsequently  made  by  mine  work- 
ers. Such  readjustments  at  every  discovery  of  a  change  in  the 
course  of  the  vein  would  create  great  uncertainty  in  titles  to  mining 
claims." 

Applying  this  doctrine  to  the  case  before  us,  it  follows  that  the 
vein  in  controversy,  the  apex  of  which  was  within  the  surface  lines 
of  the  Amy  claim,  did  not  carry  the  owner's  right  beyond  the  vertical 
plane  drawn  down  through  the  north  side  line  of  that  claim.  The 
Amy  claim  had  no  lateral  right  by  virtue  of  the  extension  of  the 
vein  through  what  was  called  the  "north  side"  of  its  claim,  as  that 
side  line  so  called  was,  in  fact,  one  of  its  end  lines. 

The  judgment  of  the  supreme  court  of  Montana  should  therefore 
be  reversed,  and  judgment  entered  in  favor  of  the  plaintiff,  for  a 
decree  of  partition  of  the  Non-Consolidated  claim  between  the  par- 
ties of  the  suit,  who  are  owners  as  tenants  in  common,  provided 
such  partition  can  be  made  with  due  regard  to  the  respective  rights 
of  the  owners,  and,  if  it  cannot  be  thus  advantageously  made,  that 
the  premises  be  sold,  and  the  proceeds  divided  according  to  their 
respective  rights,  and,  further,  that  the  respective  parties  render  an. 
account  of  the  proceeds  received  by  them,  respectively,  from  the 
Non-Consolidated  claim,  and  that  such  proceeds  be  divided  between 
them  according  to  their  respective  rights. 

And  it  is  so  ordered. 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  443 

EMPIRE  MILLING  &  MINING  CO.  v.  TOMBSTONE  MILL  & 

MINING  CO. 

1900.     Circuit  Court,  D.  Connecticut,     ioo  Fed.  910. 

TovvNSEND,  District  Judge." — Demurrers  to  answer  in  an  action 
at  law.     "'     "     " 

The  next  c[uestion  raised  by  the  demurrers  affects  the  ownership 
of  the  ore  beneath  the  surface.  Defendant,  in  extending  its  shafts 
into  the  territory  included  within  the  surface  lines  of  plaintiff's 
mine,  found  that  in  making  their  original  location  they  mistook  the 
direction  of  the  lode,  and  made  said  location  crosswise  instead  of 
lengthwise  of  the  vein.  In  following  the  vein  under  plaintiff's  sur- 
face lines,  they  found  that  the  vein,  the  apex  of  which  was  on  their 
property,  extended  laterally  under  the  surface  of  plaintiff's  loca- 
tion.    *     "^     * 

The  question  here  raised  and  claimed  to  be  novel  is  this :  In 
such  a  case,  do  the  end  lines  become  side  lines  in  the  sense  that  the 
locator  may  follow  the  dip  of  the  vein  outside  of  a  plane  extended 
vertically  downward  therefrom  ?  In  Mining  Co.  v.  Tarbet,  98  U.  S. 
463,  38  L.  Ed.  253,  the  court  said,  referring  to  such  a  condition : 

"It  was  not  the  intent  of  the  law  to  allow  a  person  to  make  his  location 
crosswise  of  a  vein  so  that  the  side  lines  shall  cross  it,  and  thereby  give  him 
the  right  to  follow  the  strike  of  the  vein  outside  of  his  side  lines.  That  would 
subvert  the  whole  system  sought  to  be  established  by  the  law.  *  *  *  The 
location  of  the  plaintiffs  in  error  is  thus  laid  across  the  Titus  lode, — that  is, 
across  the  course  of  its  apex  at  or  near  the  surface;  and  the  side  lines  of  the 
location  are  really  the  end  lines  of  their  claim,  considering  the  direction  or 
course  of  the  lode  at  the  surface.  As  the  law  stands,  we  think  that  the  right 
to  follow  the  dip  of  the  vein  is  bounded  by  the  end  lines,  properly  so  called, 
which  lines  are  those  which  are  crosswise  of  the  general  course  of  the  vein 
on  the  surface." 

Counsel  for  plaintiff  claims  that,  inasmuch  as  the  individual  who 
locates  his  claim  crosswise  of  a  vein  makes  a  mistake  in  so  doing, 
he  must  suffer  the  penalty  for  said  inistake,  and  that  beyond  the 
vertical  plane  of  his  boundary  lines  he  has  no  extralateral  rights. 
That  is  to  say,  that  the  end  lines  as  originally  located  remain  end 
lines  in  the  sense  of  the  statute,  while  the  original  side  lines  also  be- 
come end  lines,  and  the  claim  thus  becomes  bounded  by  four  end  lines, 
beyond  the  vertical  planes  of  none  of  which  the  owner  may  fol- 
low the  dip  of  the  lode.  Counsel  for  defendant  contends  that,  in- 
asmuch as  the  supreme  court  has  repeatedly,  without  any  qualifica- 
tions, said  that  the  side  lines  in  such  case  become  the  end  lines  and 
the  end  lines  side  lines,  and  as  the  statute  defines  what  shall  be  the 
rights  of  a  locator  with  reference  to  his  end  and  side  lines,  those 

*  Parts  of  the  opinion  are  omitted. 


444  SUB-SURFACE    RIGHTS. 

rights  attach  as  a  matter  of  course  to  the  new  side  lines,  and  that 
the  party  who  makes  the  mistake  is  sufficiently  punished  or  limited 
by  reason  of  the  fact  that  he  cannot  extend  his  boundaries  beyond 
the  new  end  lines.  Although  no  decision  has  been  cited  where  this 
precise  question  was  in  issue,  the  latter  view  seems  more  in  accord 
with  the  language  and  spirit  of  the  decisions  in  somewhat  analogous 
cases.  Thus,  in  King  v.  Mining  Co.,  152  U.  S.  222,  228,  14  Sup.  Ct. 
512,  38  L.  Ed.  422,  the  court  says : 

"The  most  that  the  court  can  do,  where  the  Hnes  are  drawn  inaccurately 
and  irregular!}',  is  to  give  to  the  miner  such  rights  as  his  imperfect  location 
warrants  under  the  statute.  It  cannot  relocate  his  claim,  and  make  new  side 
lines  or  end  lines.  Where  it  finds,  as  in  this  case,  that  what  are  called  side 
lines  are  in  fact  end  lines,  the  court,  in  determining  his  lateral  rights,  will 
treat  such  side  lines  as  end  lines  and  such  end  lines  as  side  lines." 

In  Last  Chance  Min.  Co.  v.  Tyler  Min.  Co.,  157  U.  S.  683,  15 
Sup.  Ct.  y2)2»  39  L.  Ed.  859,  Mr.  Justice  Brewer,  in  delivering  the 
opinion  of  the  court,  says : 

"The  course  of  this  vein  is  across  the  Last  Chance  claim,  instead  of  in  the 
direction  of  its  length.  Under  those  circumstances  the  side  lines  of  that  loca- 
tion become  the  end  lines,  and  the  end  the  side  lines.  Mining  Co.  v.  Tarbet, 
98  U.  S.  463,  25  L.  Ed.  253 ;  Argentine  Min.  Co.  v.  Terrible  Min.  Co.  122  U. 
S.  478,  7  Sup.  Ct.  1356.  30  L.  Ed.  1140;  King  v.  Mining  Co.,  152  U.  S.  222,  14 
Sup.  Ct.  510,  38  L.  Ed  419." 

In  Consolidated  Wyoming  Gold-Min.  Co.  v.  Champion  Min.  Co. 
(C.  C.)  63  Fed.  540,  547,  the  general  principle  is  thus  stated : 

"When  a  mining  claim  is  located  across,  instead  of  along,  the  lode,  its  side 
lines  must  be  treated  as  its  end  lines,  and  its  end  lines  as  its  side  lines;  so 
that,  under  Rev.  St.  §  2322,  the  dip  cannot  be  followed  outside  the  vertical 
plane  of  the  original  side  lines  into  an  adjoining  claim." 

The  principle  above  stated  seems  to  be  in  accord  with  that  of  the 
decisions  in  the  following  cases,  in  most  of  which  the  lode,  while 
passing  through  the  end  of  the  claim  as  located,  passed  out  at  one 
of  the  sides,  or  from  some  other  cause  failed  to  reach  the  other  end. 
Mining  Co.  v.  Tarbet,  98  U.  S.  463,  25  L.  Ed.  253 ;  Iron  Silver  Min. 
Co.  V.  Elgin  Mining  &  Smelting  Co.,  118  U.  S.  196,  6  Sup.  Ct. 
1 177,  30  L.  Ed.  98;  Argentine  Min.  Co.  v.  Terrible  Min.  Co.,  122 
U.  S.  478,  7  Sup.  Ct.  1356,  30  L.  Ed.  1 140;  King  v.  Mining  Co., 
152  U.  S.  222,  14  Supt.  Ct.  510,  38  L.  Ed.  419;  Del  Monte  Min.  & 
Mill.  Co.  V.  Last  Chance  Llin.  &  Mill.  Co.,  171  U.  S.  55,  18  Sup.  Ct. 
895,  43  L.  Ed.  72;  Walrath  v.  Mining  Co.,  171  U.  S.  293,  18  Sup. 
Ct.  909,  43  L.  Ed.  170.  A  careful  examination  of  the  case  of  Catron 
V.  Olds  (Colo.  Sup.)  48  Pac.  687,  relied  on  by  counsel  for  plaintifif, 
shows  that  the  question  herein  involved  was  not  presented  on  the 
record.    The  demurrers  on  this  point  are  overruled."     '^     *     * 

^In  Morrison's  Mining  Rights.  14  Ed.,  206-207,  Messrs.  Morrison  &  De- 
Soto  take  a  position  opposed  to  this  case.  But  the  principal  case  is  believed 
to  be  sound.    See  Costigan,  Mining  Law,  422^25. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1 872. 


445 


DEL  -AIONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE 
MINING  &  MILLING  CO. 


1898.     Supreme  Court  of  the  United  States. 
L.  ed.  ^2,  18  Sup.  Ct.  895. 


171  U.  S.  55,  43 


On  a  Certificate  from  the  United  States  Circuit  Court  of  Appeals 
for  the  Eighth  Circuit. 

This  case  is  before  this  court  on  questions  certified  by  the  court 
of  appeals  for  the  Eighth  circuit.  The  facts  stated  are  as  follows : 
The  appellant  is  the  owner  in  fee  of  the  Del  Monte  lode  mining 
claim,  located  in  the  Sunnyside  mining  district,  Mineral  county, 
Colo.,  for  which  it  holds  a  patent  bearing  date  February  3,  1894, 
pursuant  to  an  entry  made  at  the  local  land  office  on  February 
27,  1893.  The  appellee  is  the  owner  of  the  Last  Chance  lode  mining 
claim,  under  patent  dated  July  5,  1894.  based  on  an  entry  of  March 
I,  1894.  The  New  York  lode  mining  claim,  which  is  not  owned  by 
either  of  the  parties,  was  patented  on  April  5,  1894,  upon  an  entry 
of  August  26,  1893.  The  relative  situation  of  these  claims,  as  well 
as  the  course  and  dip  of  the  vein,  which  is  the  subject  of  controversy, 
is  shown  on  the  following  diagram  : 


446  SUB-SURFACE    RIGHTS. 

Both  in  location  and  patent  the  Del  Monte  claim  is  first  in  time, 
the  New  York  second,  and  the  Last  Chance  third.  When  the  own- 
ers of  the  Last  Chance  claim  applied  for  their  patent,  proceedings 
in  adverse  were  instituted  against  them  by  the  owners  of  the  New 
York  claim,  and  an  action  in  support  of  such  adverse  was  brought  in 
the  United  States  circuit  court  for  the  district  of  Colorado.  This 
action  terminated  in  favor  of  the  owners  of  the  New  York  and 
against  the  owners  of  the  Last  Chance,  and  awarded  the  territory  in 
conflict  between  the  two  locations  to  the  New  York  claim.  The 
ground  in  conflict  between  the  New  York  and  Del  Monte,  except 
so  much  thereof  as  was  also  in  conflict  between  the  Del  Monte  and 
Last  Chance  locations,  is  included  in  the  patent  to  the  Del  Monte 
claim.  The  New  York  secured  a  patent  to  all  of  its  territory  ex- 
cept that  in  conflict  with  the  Del  Monte,  and  the  Last  Chance  in 
turn  secured  a  patent  to  all  of  its  territory  except  that  in  conflict 
with  the  New  York,  in  which  last-named  patent  was  included  the 
triangular  surface  conflict  between  the  Del  Monte  and  Last  Chance, 
which,  by  agreement,  was  patented  to  the  latter.  The  Last  Chance 
claim  was  located  upon  a  vein,  lode,  or  ledge  of  silver  and  lead 
bearing  ore,  which  crosses  its  north  end  line,  and  continues  southerly 
from  that  point  through  the  Last  Chance  location  until  it  reaches  the 
eastern  side  line  of  the  New  York,  into  which  latter  territory  it  en- 
ters, continuing  thence  southerly  with  a  southeasterly  course  on  the 
New  York  claim  until  it  crosses  its  south  end  line.  No  part  of  the 
apex  of  the  vein  is  embraced  within  the  small  triangular  parcel  of 
ground  in  the  southwest  corner  of  the  Last  Chance  location  which 
was  patented  to  the  Last  Chance  as  aforesaid,  and  no  part  of  the 
apex  is  within  the  surface  boundaries  of  the  Del  Monte  mining 
claim.  The  portion  of  the  vein  in  controversy  is  that  lying  under 
the  surface  of  the  Del  Monte  claim,  and  between  two  vertical  planes ; 
one  drawn  through  the  north  end  line  of  the  Last  Chance  claim 
extending  westerly,  and  the  other  parallel  thereto,  and  starting  at 
the  point  where  the  vein  leaves  the  Last  Chance  and  enters  the  New 
York  claim,  as  shown  on  the  foregoing  diagram.  Upon  these  facts 
the  following  questions  have  been  certified  to  us : 

"(i)  May  any  of  the  lines  of  a  junior  lode  location  be  laid  within, 
upon  or  across  the  surface  of  a  valid  senior  location  for  the  purpose 
of  defining  for  or  securing  to  such  junior  location  underground  or 
extralateral  rights  not  in  conflict  with  any  rights  of  the  senior  loca- 
tion? 

"(2)  Does  the  patent  of  the  Last  Chance  lode  mining  claim,  which 
first  describes  the  rectangular  claim  by  metes  and  bounds,  and  then 
excepts  and  excludes  therefrom  the  premises  previously  granted  to 
the  New  York  lode  mining  claim,  convey  to  the  patentee  anything 
more  than  he  would  take  by  a  grant  specifically  describing  only  the 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  447 

two  irregular  tracts  which  constitute  the  granted  surface  of  the 
Last  Chance  claim  ? 

"(3)  Is  the  easterly  side  of  the  New  York  lode. mining  claim  an 
'end  line'  of  the  Last  Chance  lode  mining  claim,  within  the  meaning 
of  sections  2320  and  2322  of  the  Revised  Statutes  of  the  United 
States  ? 

"(4)  If  the  apex  of  a  vein  crosses  one  end  line  and  one  side  line 
of  a  lode  mining  claim,  as  located  thereon,  can  the  locator  of  such 
vein  follow  it  upon  its  dip  beyond  the  vertical  side  line  of  his  loca- 
tion? 

"(5)  On  the  facts  presented  by  the  record  herein,  has  the  appellee 
the  right  to  follow  its  vein  downward  beyond  its  west  side  line,  and 
under  the  surface  of  the  premises  of  appellant?" 

Mr.  Justice  Brewer,  after  stating  the  facts  in  the  foregoing 
language,  delivered  the  opinion  of  the  court. 

The  questions  thus  presented  are  not  only  important  but  diffi- 
cult, involving  as  they  do  the  construction  of  the  statutes  of  the 
United  States  in  respect  to  mining  claims.  As  leading  up  to  a 
clear  understanding  of  those  statutes  it  may  be  well  to  notice  the 
law  in  existence  prior  thereto.  The  general  rule  of  the  common 
law  was  that  whoever  had  the  fee  of  the  soil  owned  all  below  the 
surface,  and  this  common  law  is  the  general  law  of  the  States  and 
Territories  of  the  United  States,  and,  in  the  absence  of  specific 
statutory  provisions  or  contracts,  the  simple  inquiry  as  to  the  ex- 
tent of  mining  rights  would  be,  who  owns  the  surface.  Unques- 
tionably at  common  law  the  owner  of  the  soil  might  convey  his 
interest  in  mineral  beneath  the  surface  without  relinquishing  his 
title  to  the  surface,  but  the  possible  fact  of  a  separation  between 
the  ownership  of  the  surface  and  the  ownership  of  mines  beneath 
that  surface,  growing  out  of  a  contract,  in  no  manner  abridged 
the  general  proposition  that  the  owner  of  the  surface  owned  all 
beneath.  It  is  said  by  Lindley,  in  his  work  on  Mines,  (Vol.  i. 
Sec.  4,)  that  in  certain  parts  of  England  and  Wales  so  called 
local  customs  were  recognized  which  modified  the  general  rule  of 
the  common  law,  but  the  existence  of  such  exceptions  founded 
upon  such  local  customs  only  accentuates  the  general  rule.  The 
Spanish  and  Mexican  mining  law  confined  the  owner  of  a  mine  to 
perpendicular  lines  on  every  side.  Mining  Company  v.  Tarbet, 
98  U.  S.  463,  468;  I  Lindley  on  Mines,  sec.  13.  The  peculiarities 
of  the  Mexican  law  are  discussed  by  Lindley  at  some  length  in 
the  section  referred  to.  It  is  enough  here  to  notice  the  fact  that 
by  the  Mexican  as  by  the  common  law  the  surface  rights  limited 
the  rights  below  the  surface. 

In  the  acquisition  of  foreign  territory  since  the  establishment  of 
this  government  the  great  body  of  the  land  acquired  became  the 
property  of  the  United  States,  and  is  known  as  their  "public 
lands."    By  virtue  of  this  ownership  of  the  soil  the  title  to  all  mines 


448  SUB-SURFACE    RIGHTS. 

and  minerals  beneath  the  surface  was  also  vested  in  the  Govern- 
ment. For  nearly  a  century  there  was  practically  no  legislation 
on  the  part  of  Congress  for  the  disposal  of  mines  or  mineral  lands. 
The  statute  of  July  26,  1866,  c.  262,  14  Stat.  251,  was  the  first  gen- 
eral statute  providing  for  the  conveyance  of  mines  or  minerals. 
Previous  to  that  time  it  is  true  that  there  had  been  legislation  re- 
specting leases  of  mines,  as,  for  instance,  the  act  of  March  3,  1807, 
c.  49,  §  5,  2  Stat.  448,  449,  which  authorized  the  President  to 
lease  any  lead  mine  in  the  Indiana  Territory  for  a  term  not  exceed- 
ing five  years ;  and  acts  providing  for  the  sale  of  lands  contain- 
ing lead  mines  in  special  districts,  act  of  March  3,  1829,  c.  55,  4 
Stat.  364;  act  of  July  11,  1846,  c.  36,  9  Stat,  -^^y ;  act  of  March  i, 
1847,  c.  32,  9  Stat,  146;  act  of  March  3,  1847,  c.  54,  9  Stat.  179; 
also  such  legislation  as  is  found  in  the  act  of  February  2^,  1865, 
c.  64,  13  Stat.  440,  providing  for  a  District  and  Circuit  Court 
for  the  District  of  Nevada,  in  which  it  was  said,  in  section  9 : 
"That  no  possessory  action  between  individuals  in  any  of  the  courts 
of  the  United  States  for  the  recovery  of  any  mining  title,  or  for 
damages  to  any  such  title,  shall  be  affected  by  the  fact  that  the 
paramount  title  to  the  land  on  which  such  mines  are,  is  in  the 
United  States,  but  each  case  shall  be  adjudged  by  the  law  of  pos- 
session ;"  that  of  May  5,  1866,  c.  73,  14  Stat.  43,  concerning  the 
boundaries  of  the  State  of  Nevada,  which  provided  that  "all  pos- 
sessory rights  acquired  by  citizens  of  the  United  States  to  mining 
claims,  discovered,  located  and  originally  recorded  in  compliance 
with  the  rules  and  regulations  adopted  by  miners  in  the  Pah- 
Ranagat  and  other  mining  districts  in  the  territory  incorporated 
by  the  provisions  of  this  act  into  the  State  of  Nevada  shall  re- 
main as  valid  subsisting  mining  claims ;  but  nothing  herein  con- 
tained shall  be  so  construed  as  granting  a  title  in  fee  to  any  min- 
eral lands  held  by  possessory  titles  in  the  mining  States  and  Terri- 
tories;"  and  the  act  of  July  25,  1866,  c.  244,  14  Stat.  242,  which, 
granting  to  A.  Sutro  and  his  assigns  certain  privileges  to  aid  in  the 
construction  of  a  tunnel,  conferred  upon  the  grantees  the  right  of 
pre-emption  of  lodes  within  two  thousand  feet  on  each  side  of  said 
tunnel.  Two  laws  were  also  passed  regulating  the  sale  and  dis- 
posal of  coal  lands;  one  on  July  i,  1864,  c.  205,  and  one  on  March 
3,  i865,_c.  107.  13  Stat.  343,  529. 

Notwithstanding  that  there  was  no  general  legislation  on  the 
part  of  Congress,  the  fact  of  explorers  searching  the  public  domain 
for  mines,  and  their  possessory  rights  to  the  mines  by  them  discov- 
ered, was  generally  recognized,  and  the  rules  and  customs  of 
miners  in  any  particular  district  were  enforced  as  valid.  As  said 
by  this  court  in  Sparrow  v.  Strong,  3  Wall.  97,  104:  "'We  know, 
also,  that  the  territorial  legislature  has  recognized  by  statute  the 
validity  and  binding  force  of  the  rules,  regulations  and  customs 
of  the  mining  districts.     And  we  cannot  shut  our  eyes  to  the  pub- 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  449 

lie  history,  which  informs  us  that  under  this  legislation,  and  not 
only  without  interference  by  the  National  Government,  but  under 
its  implied  sanction,  vast  mining  interests  have  grown  up,  employ- 
ing many  millions  of  capital,  and  contributing  largely  to  the  pros- 
perity and  improvement  of  the  whole  country."  See  also  Forbes 
v.  Gracey,  94  U.  S.  762 ;  Jennison  v.  Kirk,  98  U.  S.  453,  459 ; 
Broder  v.  Water  Company,  loi  U.  S.  274,  276;  Manuel  v.  Wulff, 
152  U.  S.  505,  510;  Black  V.  Elkhorn  Mining  Company,  163  U.  S. 

445.  449- 

The  act  of  1866  was,  however,  as  we  have  said,  the  first  general 
legislation  in  respect  to  the  disposal  of  mines.  The  first  section 
provided :  "That  the  mineral  lands  of  the  public  domain,  both 
surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and  open 
to  exploration  and  occupation  by  all  citizens  of  the  United  States, 
and  those  who  have  declared  their  intention  to  become  citizens, 
subject  to  such  regulations  as  may  be  prescribed  by  law,  and  sub- 
ject also  to  the  local  customs  or  rules  of  miners  in  the  several 
mining  districts,  so  far  as  the  same  may  not  be  in  conflict  with  the 
laws  of  the  United  States." 

The  second  section  gave  to  a  claimant  of  a  vein  or  lode  of  quartz, 
or  other  rock  in  place,  bearing  gold,  etc.,  the  right  "to  file  in  the 
local  land  office  a  diagram  of  the  same  *  *  *  ^^^^  ^q  enter  such 
tract  and  receive  a  patent  therefor,  granting  such  mine,  together 
with  the  right  to  follow  such  vein  or  lode  with  its  dips,  angles  and 
variations,  to  any  depth,  although  it  may  enter  the  land  adjoin- 
ing, which  land  adjoining  shall  be  sold  subject  to  this  condition." 
The  purpose  here  manifested  was  the  conveyance  of  the  vein,  and 
not  the  conveyance  of  a  certain  area  of  land  within  which  was  a  vein. 
Section  3,  which  set  forth  the  steps  necessary  to  be  taken  to  secure 
a  patent  and  required  the  payment  of  five  dollars  per  acre  for  the 
land  conveyed,  added :  "But  said  plat,  survey  or  description  shall 
in  no  case  cover  more  than  one  vein  or  lode,  and  no  patent  shall 
issue  for  more  than  one  vein  or  lode,  which  shall  be  expressed  in 
the  patent  issued."  Nowhere  was  there  any  express  limitation  as  to 
the  amount  of  land  to  be  conveyed,  the  provision  in  section  4  being : 
^'That  no  location  hereafter  made  shall  exceed  two  hundred  feet 
in  length  along  the  vein  for  each  locator,  with  an  additional  claim 
for  discovery  to  the  discoverer  of  the  lode,  with  the  right  to  follow 
such  vein  to  any  depth,  with  all  its  dips,  variations  and  angles,  to- 
gether with  a  reasonable  quantity  of  surface  for  the  convenient 
working  of  the  same  as  fixed  by  local  rules :  And  provided  further, 
That  no  person  may  make  more  than  one  location  on  the  same 
lode,  and  not  more  than  three  thousand  feet  shall  be  taken  in  any 
one  claim  by  any  association  of  persons." 

Obviously,  the  statute  [of  1866]  contemplated  the  patenting  of  a 
certain  number  of  feet  of  the  particular  vein  claimed  by  the  lo- 
cator, no  matter  how  irregular  its  course,  made  no  provision  as 

29 — Mining  Law 


450  SUB-SURFACE    RIGHTS. 

to  the  surface  area  or  the  form  of  the  surface  location,  leaving  the 
land  department  in  each  particular  case  to  grant  so  much  of  the 
surface  as  was  "fixed  by  local  rules,"  or  was,  in  the  absence  of 
such  rules,  in  its  judgment,  necessary  for  the  convenient  working 
of  the  mine.  The  party  to  whom  the  vein  was  thus  patented  was 
permitted  to  follow  it  on  its  dip  to  any  extent,  although  thereby 
passing  underneath  lands  to  which  the  owner  of  the  vein  had  no 
title. 

As  might  be  expected,  the  patents  issued  under  this  statute  de- 
scribed surface  areas  very  difi^erent,  and  sometimes  irregular  in 
form.  Often  they  were  like  a  broom,  there  being  around  the  dis- 
covery shaft  an  amount  of  ground  deemed  large  enough  for  the  con- 
venient v/orking  of  the  mine,  and  a  narrow  strip  extending  therefrom 
as  the  handle  of  the  broom.  This  strip  might  be  straight  or  in  a 
curved  or  irregular  line,  following,  as  was  supposed,  the  course 
of  the  vein.  Sometimes  the  surface  claimed  and  patented  was  a 
tract  of  considerable  size,  so  claimed  with  the  view  of  including 
the  apex  of  the  vein,  in  whatever  direction  subsequent  explorations 
might  show  it  to  run.  And  again,  where  there  were  local  rules 
giving  to  the  discoverer  of  a  mine  possessory  rights  in  a  certain 
area  of  surface,  the  patent  followed  those  rules,  and  conveyed  a 
similar  area.  Even  under  this  statute,  although  its  express  pur- 
pose v/as  primarily  to  grant  the  single  vein,  yet  the  rights  of  the 
patentee  beneath  the  surface  were  limited  and  controlled  by  his 
rights  upon  the  surface.  If,  in  fact,  as  shown  by  subsequent  ex- 
plorations, the  vein,  on  its  course  or  strike,  departed  from  the 
boundary  lines  of  the  surface  location,  the  point  of  departure  was 
the  limit  of  right.  In  other  words,  he  was  not  entitled  to  the  claimed 
and  patented  number  of  feet  of  the  vein,  irrespective  of  the  ques- 
tion whether  the  vein  in  its  course  departed  from  the  lines  of  the 
surface  location. 

The  litigation  in  respect  to  the  Flagstaff  mine  in  Utah  illustrates 
this.  There  was  a  local  custom  giving  to  the  locator  of  a  mine  fifty 
feet  in  width  on  either  side  of  the  course  of  the  vein,  and  the  Flag- 
staff patent  granted  a  superficies  one  hundred  feet  wide  by  twenty- 
six  hundred  feet  long,  with  the  right  to  follow  the  vein  described 
therein  to  the  extent  of  twenty-six  hundred  feet.  It  turned  out  that 
the  vein,  instead  of  running  through  this  parallelogram  lengthwise, 
crossed  the  side  lines,  so  that  there  was  really  but  a  hundred  feet  of 
the  length  of  the  vein  within  the  surface  area.  On  either  side  of  the 
Flagstaff  ground  were  other  locations,  through  which  the  vein  on  its 
course  passed.  As  against  these  two  locations  the  owners  of  the 
Flagstaff  claimed  the  right  to  follow  the  vein  on  its  course  or  strike 
to  the  full  extent  of  twenty-six  hundred  feet.  This  was  denied  by 
the  Supreme  Court  of  Utah.  McCormick  v.  Varnes,  2  Utah  355.  In 
that  case  the  controversy  was  with  the  location  on  the  west  of  the 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  451 

Flagstaff.  The  decisions  of  that  court  in  respect  to  the  controversy 
with  the  location  on  the  east  of  he  Flagtsaff  is  not  reported,  but  the 
case  came  to  this  court.  Mining  Company  v.  Tarbet,  98  U.  S.  463. 
In  the  course  of  the  opinion  (pages  467,  468)  it  was  said: 

"It  was  not  the  intent  of  the  law  to  allow  a  person  to  make  his  lo- 
cation crosswise  of  a  vein  so  that  the  side  lines  shall  cross  it,  and 
thereby  give  him  the  right  to  follow  the  strike  of  the  vein  outside  of 
his  side  lines.  That  would  subvert  the  whole  system  sought  to  be 
established  by  the  law.  If  he  does  locate  his  claim  in  that  way,  his 
rights  must  be  subordinated  to  the  rights  of  those  who  have  properly 
located  on  the  lode.  Their  right  to  follow  the  dip  outside  of  their 
side  lines  cannot  be  interfered  with  by  him.  His  right  to  the  lode 
only  extends  to  so  much  of  the  lode  as  his  claim  covers.  If  he  has  lo- 
cated crosswise  of  the  lode,  and  his  claim  is  only  one  hundred  feet 
wide,  that  one  hundred  feet  is  all  he  has  a  right  to." 

These  decisions  show  that  while  the  express  purpose  of  the  stat- 
ute [of  1866]  was  to  grant  the  vein  for  so  many  feet  along  its  course, 
yet  such  grant  could  only  be  made  effective  by  a  surface  location 
covering  the  course  to  such  extent.  This  act  of  1866  remained  in 
force  only  six  years,  and  was  then  superseded  by  the  act  of  May  10, 
1872  (17' Stat.  91),  found  in  the  Revised  Statutes  (section  2319  and 
following).  This  is  the  statute  which  is  in  force  today,  and  under 
which  the  controversies  in  this  case  arise.  Section  2319,  Rev.  St. 
(corresponding  to  section  i  of  the  act  of  1872),  reads : 

"All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be 
free  and  open  to  exploration  and  purchase,  and  the  lands  in  which 
they  are  found  to  occupation  and  purchase,  by  citizens  of  the 
United  States  and  those  who  have  declared  their  intention  to  become 
such,  under  regulations  prescribed  by  law,  and  according  to  the  local 
customs,  or  rules  of  miners  in  the  several  mining  districts,  so  far 
as  the  same  are  applicable  and  not  inconsistent  with  the  law  of  the 
United  States." 

It  needs  no  argument  to  show  that,  if  this  were  the  only  section 
bearing  upon  the  question,  patents  for  land  containing  mineral  would, 
except  in  cases  affected  by  local  customs  and  rules  of  miners,  be 
subject  to  the  ordinary  rules  of  the  common  law,  and  would  convey 
title  to  only  such  minerals  as  were  found  beneath  the  surface.  We 
therefore  turn  to  the  following  sections  to  see  what  extralateral 
rights  are  given,  and  upon  what  conditions  they  may  be  exercised. 
And  it  must  be  borne  in  mind  in  considering  the  questions  presented 
that  we  are  dealing  simply  with  statutory  rights.  There  is  no  show- 
ing of  any  local  customs  or  rules  affecting  the  rights  defined  in  and 
prescribed  by  the  statute,  and  beyond  the  terms  of  the  statute  courts 
may  not  go.  They  have  no  power  of  legislation.  They  cannot  as- 
sume the  existence  of  any  natural  equity,  and  rule  that  by  reason  of 
such  equity  a  party  may  follow  a  vein  into  the  territory  of  his  neigh- 


452  SUB-SURFACE    RIGHTS. 

bor,  and  appropriate  it  to  his  own  use.  If  cases  arise  for  which 
congress  has  made  no  provision,  the  courts  cannot  supply  the  defect. 
Congress  having  prescribed  the  conditions  upon  which  extralateral 
rights  may  be  acquired,  a  party  must  bring  himself  within  those  con- 
ditions, or  else  be  content  with  simply  the  mineral  beneath  the  sur- 
face of  his  territory.  It  is  undoubtedly  true  that  the  primary  thought 
of  the  statute  is  the  disposal  of  the  mines  and  minerals,  and  in  the 
interpretation  of  the  statute  this  primary  purpose  must  be  recog- 
nized, and  given  effect.  Hence,  whenever  a  party  has  acquired  the 
title  to  ground  within  whose  surface  area  is  the  apex  of  a  vein 
with  a  few  or  many  feet  along  its  course  or  strike,  a  right  to  fol- 
low that  vein  on  its  dip  for  the  same  length  ought  to 
be  awarded  to  him  if  it  can  be  done,  and  only  if  it  can 
be  done,  under  any  fair  and  natural  construction  of  the  language 
of  the  statute.  If  the  surface  of  the  ground  was  everywhere  level, 
and  veins  constantly  pursued  a  straight  line,  there  would  be  little 
difficulty  in  legislation  to  provide  for  all  contingencies ;  but  mineral 
is  apt  to  be  found  in  mountainous  regions  where  great  irregularity 
of  surface  exists,  and  the  course  or  strike  of  the  veins  is  as  irregular 
as  the  surface,  so  that  many  cases  may  arise  in  which  statutory  pro- 
visions will  fail  to  secure  to  a  discoverer  of  a  vein  such  an  amount 
thereof  as  equitably  it  would  seem  he  ought  to  receive.  We  make 
these  observations  because  we  find  in  some  of  the  opinions  asser- 
tions by  the  writers  that  they  have  devised  rules  which  will  work 
out  equitable  solutions  of  all  difficulties.  Perhaps  those  rules  may 
have  all  the  virtues  which  are  claimed  for  them,  and,  if  so,  it  were 
well  if  congress  could  be  persuaded  to  enact  them  into  statute ;  but, 
be  that  as  it  may,  the  question  in  the  courts  is  not  what  is  equity, 
but  what  saith  the  statute.  Thus,  for  instance,  there  is  no  inherent 
necessity  that  the  end  hues  of  a  mining  claim  should  be  parallel,  yet 
the  statute  has  so  specifically  prescribed.  Section  2320.  It  is  not 
within  the  province  of  the  courts  to  ignore  such  provision,  and  hold 
that  a  locator,  failing  to  comply  with  its  terms,  has  all  the  rights, 
extralateral  and  otherwise,  which  he  would  have  been  entitled  to 
if  he  had  complied;  and  so  it  has  been  adjudged.  Iron  Silver  Min. 
Co.  V.  Elgin  Mining  &  Smehing  Co.,  118  U.  S.  196,  6  Sup.  Ct.  1177. 
This  case,  which  is  often  called  the  "Horseshoe  Case,"  on  account 
of  the  form  of  the  location,  is  instructive.  The  following  diagram, 
which  was  in  the  record  in  that  case,  illustrates  the  scope  of  the  de- 
cision : 


EXTRALATERAL    RIGHTS    UNDER    ACT    I872 


453 


SCALE-  200  FEET  »  /  INCH. 


The  locator  claimed  in  his  application  for  a  patent  the  lines  i,  14, 
and  5,  h,  as  the  end  lines  of  his  location,  and,  because  of  their  par- 
allelism, that  he  had  complied  with  the  letter  of  the  statute  ;  but  the 
court  ruled  ag^ainst  him,  saying  in  the  opinion  (page  208,  118  U.  S., 
1 184,  6  Sup.  Ct.)  : 

"The  exterior  lines  of  the  Stone  claim  formed  a  curved  figure 
somewhat  in  the  shape  of  a  horseshoe,  and  its  end  lines  are  not  and 
cannot  be  made  parallel.  What  are  marked  on  the  plat  as  end  lines 
are  not  such.  The  one  between  numbers  5  and  6  is  a  side  line.  The 
draftsman  or  surveyor  seems  to  have  hit  upon  two  parallel  lines  of 
his  nine-sided  figure,  and  apparently  for  no  other  reason  than  their 
parallelism  called  them  end  lines.  We  are  therefore  of  opinion  that 
the  objection  that,  by  reason  of  the  surface  form  of  the  Stone  claim, 
the  defendant  could  not  follow  the  lode  existing  therein  in  its  down- 
ward course  beyond  the  lines  of  the  claim,  was  well  taken  to  the 
ofifered  proof." 

It  is  true,  the  court  also  observed  that,  if  the  two  lines  named  by 


454  SUB-SURFACE   RIGHTS. 

the  locator  were  to  be  considered  the  end  lines,  no  part  of  the  vein 
in  controversy  fell  "within  vertical  planes  drawn  down  through  those 
lines  continued  in  their  own  direction."  But,  notwithstanding  this 
observation,  the  point  of  the  decision  was  that  the  lines  which  were 
the  end  lines  of  the  location  as  made  on  the  surface  of  the  ground 
were  not  parallel,  and  that  this  defect  could  not  be  obviated  by  call- 
ing that  which  was  in  fact  a  side  line  an  end  line.  This  is  made 
more  clear  by  the  observations  of  the  chief  justice,  who,  with  Mr. 
Justice  Bradley,  dissented,  in  which  he  said : 

"I  cannot  agree  to  this  judgment.  In  my  opinion,  the  end  lines 
of  a  mining  location  are  to  be  projected  parallel  to  each  other  and 
crossv/ise  of  the  general  course  of  the  vein  within  the  surface  limits 
of  the  location,  and  whenever  the  top  or  apex  of  the  vein  is  found 
within  the  surface  lines  extended  vertically  downward,  the  vein  may 
be  followed  outside  of  the  vertical  side  lines.  The  end  lines  are  not 
necessarily  those  which  are  marked  on  the  map  as  such,  but  they  may 
be  projected  at  the  extreme  points  where  the  apex  leaves  the  loca- 
tion as  marked  on  the  surface." 

In  other  words,  the  court  took  the  location  as  made  on  the  surface 
by  the  locator,  determined  from  that  what  were  the  end  lines,  and 
made  those  surface  end  lines  controlling  upon  his  rights ;  and  re- 
jected the  contention  that  it  was  proper  for  the  court  to  ignore  the 
surface  location,  and  create  for  the  locator  a  new  location  whose  end 
lines  should  be  crosswise  of  the  general  course  of  the  vein  as  finally 
determined  by  explorations.  That  this  decision  and  that  in  the 
Tarbet  Case,  supra,  [98  U.  S.  463]  were  correct  expositions  of  the 
statute,  and  correctly  comprehended  the  intent  of  congress  therein, 
is  evident  from  the  fact  that,  although  they  were  announced  in  1885 
and  1878,  respectively,  congress  has  not  seen  fit  to  change  the  lan- 
guage of  the  statute,  or  in  any  manner  to  indicate  that  any  dift'erent 
measure  of  rights  should  be  awarded  to  a  mining  locator. 

With  these  preliminary  observations,  we  pass  to  a  consideration  of 
the  questions  propounded.     The  first  is : 

"May  any  of  the  lines  of  a  junior  lode  location  be  laid  within, 
upon,  or  across  the  surface  of  a  valid  senior  location  for  the  pur- 
pose of  defining  for  or  securing  to  such  junior  location  underground 
or  extralattral  rights  not  in  conflict  with  any  rights  of  the  senior 
location  ?" 

By  section  2319,  quoted  above,  the  mineral  deposits  which  are 
declared  to  be  open  to  exploration  and  purchase  are  those  found  in 
lands  belonging  to  the  United  States,  and  such  lands  are  the  only 
ones  open  to  occupation  and  purchase.  While  this  is  true,  it  is  also 
true  that  until  the  legal  title  has  passed  the  public  lands  are  within 
the  jurisdiction  of  the  land  department,  and,  although  equitable 
rights  may  be  established,  congress  retains  a  certain  measure  of  con- 
trol. Lumber  Co.  v.  Rust,  168  U.  S.  589,  18  Sup.  Ct.  208.  The 
grant  is,  as  is  often  said,  in  process  of  administration.     Passing  to 


EXTRALATERAL    RIGHTS    UNDER    ACT    18/2.  455 

section  2320,  beyond  the  recognition  of  the  governing  force  of  cus- 
toms and  regulations  and  a  declaration  as  to  the  extreme  length  and 
width  of  a  mining  claim  it  is  provided  that:  "No  location  of  a  min- 
ing claim  shall  be  made  until  the  discovery  of  the  vein  or  lode  within 
the  limits  of  the  claim  located.  *  *  *  The  end  lines  of  each  claim 
shall  be  parallel  to  each  other." 

Section  2322  gives  to  the  locators  of  all  mining  locations,  so  long 
as  they  comply  with  laws  of  the  United  States,  and  with  state,  terri- 
torial, and  local  regulations  not  in  conflict  therewith,  "the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface  included  within 
the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges  through- 
out their  entire  depth,  the  top  or  apex  of  which  lies  inside  of  such 
surface  lines  extended  downward  vertically,  although  such  veins, 
lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their 
course  downward  as  to  extend  outside  the  vertical  side  lines  of  such 
surface  locations.  But  their  right  of  possession  of  such  outside 
parts  of  such  veins  or  ledges  shall  be  confined  to  such  portions 
thereof  as  lie  between  vertical  planes  drawn  downward  as  above  de- 
scribed, through  the  end  lines  of  their  locations,  so  continued  in  their 
own  direction  that  such  planes  will  intersect  such  exterior  parts  of 
such  veins  or  ledges.  And  nothing  in  this  section  shall  authorize 
the  locator  or  possessor  of  a  vein  or  lode  which  extends  in  its  down- 
ward course  beyond  the  vertical  lines  of  his  claim  to  enter  upon  the 
surface  of  a  claim  owned  or  possessed  by  another." 

Section  2324  in  terms  authorizes  "the  miners  of  each  mining  dis- 
trict to  make  regulations  not  in  conflict  with  the  laws  of  the  United 
States,  or  with  the  laws  of  the  state  or  territory  in  which  the  district 
is  situated,  governing  the  location,  manner  of  recording,  amount  of 
work  necessary  to  hold  possession  of  a  mining  claim,  subject  to  the 
following  requirements :  The  location  must  be  distinctly  marked 
on  the  ground  so  that  its  boundaries  can  be  readily  traced.  All  rec- 
ords of  mining  claims  hereafter  made  shall  contain  the  name  or 
names  of  the  locators,  the  date  of  the  location,  and  such  a  descrip- 
tion of  the  claim  or  claims  located  by  reference  to  some  natural 
object  or  permanent  monument  as  will  identify  the  claim.  On  each 
claim  located  after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  and  until  a  patent  has  been  issued  therefor,  not  less 
than  one  hundred  dollars'  worth  of  labor  shall  be  performed  or  im- 
provements made  during  each  year.  On  all  claims  located  prior  to 
the  tenth  day  of  May.  eighteen  hundred  and  seventy-two,  ten  dollars' 
worth  of  labor  shall  be  performed  or  improvements  made  by  the 
tenth  day  of  June,  eighteen  hundred  and  seventy-four,  and  each  year 
thereafter,  for  each  one  hundred  feet  in  length  along  the  vein  until 
a  patent  has  been  issued  therefor;  but  where  such  claims  are  held 
in  common,  such  expenditure  may  be  made  upon  any  one  claim ; 
and  upon  a  failure  to  comply  with  these  conditions,  the  claim  or 


456  SUB-SURFACE    RIGHTS. 

mine  upon  which  such  failure  occurred  shall  be  open  to  relocation  in 
the  same  manner  as  if  no  location  of  the  same  had  ever  been  made, 
provided  that  the  original  locators,  their  heirs,  assigns,  or  legal  rep- 
resentatives, have  not  resumed  w^ork  upon  the  claim  after  failure  and 
before  such  location." 

Section  2325  provides  for  the  issue  of  a  patent.  It  reads : 
"A  patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner :  Any  person,  association, 
or  corporation  authorized  to  locate  a  claim  under  this  chapter,  hav- 
ing claimed  and  located  a  piece  of  land  for  such  purposes,  who  has, 
or  have,  complied  with  the  terms  of  this  chapter,  may  file  in  the 
proper  land  office  an  application  for  a  patent,  under  oath,  showing 
such  compliance,  together  with  a  plat  and  field-notes  of  the  claim 
or  claims  in  common,  made  by  or  under  the  direction  of  the  United 
State  surveyor-general,  showing  accurately  the  boundaries  of  the 
claim  or  claims,  which  shall  be  distinctly  marked  by  monuments  on 
the  ground,  and  shall  post  a  copy  of  such  plat,  together  with  a  notice 
of  such  application  for  a  patent,  in  a  conspicuous  place  on  the  land 
embraced  in  such  plat  previous  to  the  filing  of  the  application  for 
a  patent,  and  shall  file  an  affidavit  of  at  least  two  persons  that  such 
notice  has  been  duly. posted,  and  shall  file  a  copy  of  the  notice  in 
such  land  office,  and  shall  thereupon  be  entitled  to  a  patent  for  the 
land,  in  the  manner  following :  The  register  of  the  land  office,  upon 
the  filing  of  such  application,  plat,  field-notes,  notices,  and  affidavits, 
shall  publish  a  notice  that  such  application  has  been  made,  for  the 
period  of  sixty  days,  in  a  newspaper  to  be  by  him  designated  as  pub- 
lished nearest  to  such  claim  ;  and  he  shall  also  post  such  notice  in 
his  office  for  the  same  period.  The  claimant,  at  the  time  of  filing 
this  application,  or  at  any  time  thereafter,  within  the  sixty  days  of 
publication,  shall  file  with  the  register  a  certificate  of  the  United 
States  surveyor-general  that  five  hundred  dollars'  worth  of  labor 
has  been  expended  or  improvements  made  upon  the  claim  by  him- 
self or  grantors ;  that  the  plat  is  correct,  with  such  further  descrip- 
tion by  such  reference  to  natural  objects  or  permanent  monuments 
as  shall  identify  the  claim,  and  furnish  an  accurate  description,  to 
be  incorporated  in  the  patent.  At  the  expiration  of  the  sixty  days 
of  publication  the  claimant  shall  file  his  affidavit,  showing  that  the 
plat  and  notice  have  been  posted  in  a  conspicuous  place  on  the  claim 
during  such  period  of  publication.  If  no  adverse  claim  shall  have 
been  filed  with  the  register  and  the  receiver  of  the  proper  land  office 
at  the  expiration  of  the  sixty  days  of  publication,  it  shall  be  assumed 
that  the  applicant  is  entitled  to  a  patent,  upon  the  payment  to  the 
proper  officer  of  five  dollars  per  acre,  and  that  no  adverse  claim  ex- 
ists;  and  thereafter  no  objection  from  third  parties  to  the  issuance 
of  a  patent  shall  be  heard,  except  it  be  shown  that  the  applicant  has 
failed  to  comply  with  the  terms  of  this  chapter." 
Section  2326  is  as  follows : 


EXTRALATERAL    RIGHTS    UNDER    ACT    lSj2.  457 

"Where  an  adverse  claim  is  filed  during  the  period  of  publication 
it  shall  be  upon  oath  of  the  person  or  persons  making  the  same,  and 
shall  show  the  nature,  boundaries,  and  extent  of  such  adverse  claim, 
and  all  proceedings,  except  the  publication  of  notice  and  making  and 
filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  controversy 
shall  have  been  settled  or  decided  by  a  court  of  competent  jurisdic- 
tion, or  the  adverse  claim  waived.  It  shall  be  the  duty  of  the  ad- 
verse claimant,  within  thirty  days  after  filing  his  claim,  to  com- 
mence proceedings  in  a  court  of  competent  jurisdiction  to  determine 
the  question  of  the  right  of  possession,  and  prosecute  the  same  with 
reasonable  diligence  to  final  judgment;  and  a  failure  so  to  do  shall 
be  a  waiver  of  his  adverse  claim.  After  such  judgment  shall  have 
been  rendered,  the  party  entitled  to  the  possession  of  the  claim,  or 
any  portion  thereof,  may,  without  giving  further  notice,  file  a  certi- 
fied copy  of  the  judgment  roll  with  the  register  of  the  land  office, 
together  with  the  certificate  of  the  surveyor-general  that  the  requi- 
site amount  of  labor  has  been  expended  or  improvements  made  there- 
on, and  the  description  required  in  other  cases,  and  shall  pay  to  the 
receiver  five  dollars  per  acre  for  his  claim,  together  with  the  proper 
fees,  whereupon  the  whole  proceedings  and  the  judgment  roll  shall 
be  certified  by  the  register  to  the  commissioner  of  the  general  land 
office,  and  a  patent  shall  issue  thereon  for  the  claim,  or  such  portion 
thereof,  as  the  applicant  shall  appear,  from  the  decision  of  the  court, 
to  rightly  possess.  If  it  appears  from  the  decision  of  the  court  that 
several  parties  are  entitled  to  separate  and  different  portions  of  the 
claim,  each  party  may  pay  for  his  portion  of  the  claim,  with  the 
proper  fees,  and  file  the  certificate  and  description  by  the  surveyor- 
general,  whereupon  the  register  shall  certify  the  proceedings  and 
judgment  roll  to  the  commissioner  of  the  general  land  office,  as  in 
the  preceding  case,  and  patents  shall  issue  to  the  several  parties  ac- 
cording to  their  respective  rights.  Nothing  herein  contained  shall  be 
construe'd  to  prevent  the  alienation  of  the  titled  conveyed  by  a  patent 
for  a  mining  claim  to  any  person  whatever." 

These  are  the  only  provisions  of  the  statute  which  bear  upon  the 
question  presented. 

The  stress  of  the  argument  in  favor  of  a  negative  answer  to  this 
question  lies  in  the  contention  that  by  the  terms  of  the  statute  exclu- 
sive possessory  rights  are  granted  to  the  locator.  Section  2322  de- 
clares that  the  locators  "shall  have  the  exclusive  right  of  possession 
and  enjoyment  of  all  the  surface  included  within  the  lines  of  their 
locations,"  and  negatively  that  "nothing  in  this  section  shall  authorize 
the  locator  or  possessor  of  a  vein  or  lode  which  extends  in  its  down- 
ward course  beyond  the  vertical  lines  of  his  claim  to  enter  upon  the 
surface  of  a  claim  owned  or  possessed  by  another."  Hence  it  is 
said  that  affirmatively  and  negatively  is  it  provided  that  the  locator 
shall  have  exclusive  possession  of  the  surface,  and  that  no  one  shall 
have  a  right  to  disturb  him  in  such  possession.     How,  then,  it  is 


458  SUB-SURFACE    RIGHTS. 

asked,  can  any  one  have  a  right  to  enter  upon  such  location  for  the 
purpose  of  making-  a  second  location?  If  he  does  so,  he  is  a  tres- 
passer, and  it  cannot  be  presumed  that  congress  intended  that  any 
rights  should  be  created  by  a  trespass. 

We  are  not  disposed  to  undervalue  the  force  of  this  argument,  and 
yet  are  constrained  to  hold  that  it  is  not  controlling.  It  must  be 
borne  in  mind  that  the  location  is  the  initial  step  taken  by  the  loca- 
tor to  indicate  the  place  and  extent  of  the  surface  which  he  desires 
to  acquire.  It  is  a  means  of  giving  notice.  That  which  is  located 
is  called  in  section  2320  and  elsewhere  a  "claim"  or  a  "mining  claim." 
Indeed,  the  words  "claim"  and  "location"  are  used  interchangeably. 
This  location  does  not  come  at  the  end  of  the  proceedings,  to  define 
that  which  has  been  acquired  after  all  contests  have  been  adjudi- 
cated. The  location,  the  mere  making  of  a  claim,  works  no  injury 
to  one  who  has  acquired  prior  rights.  Some  confusion  may  arise 
when  locations  overlap  each  other,  and  include  the  same  ground, 
for  then  the  right  of  possession  becomes  a  matter  of  dispute,  but 
no  location  creates  a  right  superior  to  any  previous  valid  location. 
And  these  possessory  rights  have  always  been  recognized  and  dis- 
putes concerning  them  settled  in  the  courts. 

It  will  also  be  noticed  that  the  locator  is  not  compelled  to  follow 
the  lines  of  the  government  surveys,  or  to  make  his  location  in  any 
manner  correspond  to  such  surveys.  The  location  may,  indeed, 
antedate  the  public  surveys ;  but,  whether  before  or  after  them, 
the  locator  places  his  location  where,  in  his  judgment,  it  will  cover 
the  underlying  vein.  The  law  requires  that  the  end  lines  of  the 
claim  shall  be  parallel.  It  will  often  happen  that  locations  which 
do  not  overlap  are  so  placed  as  to  leave  between  them  some  irregu- 
lar parcel  of  ground.  Within  that,  it  being  no  more  than  one  locator 
is  entitled  to  take,  may  be  discovered  a  mineral  vein,  and  the  dis- 
coverer desire  to  take  the  entire  surface,  and  yet  it  be  impossible 
for  him  to  do  so,  and  make  his  end  lines  parallel,  unless,  for  the 
mere  purposes  of  location,  he  be  permitted  to  place  those  end  lines 
on  territory  already  claimed  by  the  prior  locators. 

Again,  the  location  upon  the  surface  is  not  made  with  the  view  of 
getting  benefits  from  the  use  of  that  surface.  The  purpose  is  to 
reach  the  vein  which  is  hidden  in  the  depths  of  the  earth,  and  the 
location  is  made  to  measure  rights  beneath  the  surface.  The  area 
of  surface  is  not  the  matter  of  moment.  The  thing  of  value  is  the 
hidden  mineral  below,  and  each  locator  ought  to  be  entitled  to 
make  his  location  so  as  to  reach  as  much  of  the  unappropriated,  and 
perhaps  only  partially  discovered  and  traced,  vein,  as  is  possible. 

Further,  congress  has  not  prescribed  how  the  location  shall  be 
made.  It  has  simply  provided  that  it  "must  be  distinctly  marked 
on  the  ground,  so  that  its  boundaries  can  be  readily  traced," 
leaving  the  details,  the  manner  of  marking,  to  be  settled 
by    the  regulations  of  each  mining  district.     Whether   such   loca- 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  459 

tion  shall  be  made  by  stone  posts  at  the  four  corners,  or  by 
simply  wooden  stakes,  or  how  many  such  posts  or  stakes  shall  be 
placed  along  the  sides  and  ends  of  the  locations,  or  what  other 
matter  of  detail  must  be  pursued  in  order  to  perfect  a  location,  is 
left  to  the  varying  judgments  of  the  mining  districts.  Such  locations, 
such  markings  on  the  ground,  are  not  always  made  by  experienced 
surveyors.  Indeed,  as  a  rule,  it  has  been  and  was  to  be  expected  that 
such  locations  and  markings  would  be  made  by  the  miners  themselves, 
— men  inexperienced  in  the  matter  of  surveying, — and  so,  in  the  na- 
ture of  things,  there  must  frequently  be  disputes  as  to  whether  any 
particular  location  was  sufficiently  and  distinctly  marked  on  the  sur- 
face of  the  ground.  Especially  is  this  true  in  localities  where  the 
ground  is  wooded  or  broken.  In  such  localities  the  posts,  stakes,  or 
other  particular  marks  required  by  the  rules  and  regulations  of  the 
mining  district  may  be  placed  in  and  upon  the  ground,  and  yet,  owing 
to  the  fact  that  it  is  densely  wooded,  or  that  it  is  very  broken,  such 
marks  may  not  be  perceived  by  the  new  locator,  and  his  own  loca- 
tion marked  on  the  ground  in  ignorance  of  the  existence  of  any 
prior  claim.  And  in  all  places  posts,  stakes,  or  other  monuments, 
although  sufficient  at  first,  and  clearly  visible,  may  be  destroyed  or 
removed,  and  nothing  remain  to  indicate  the  boundaries  of  the  prior 
location.  Further,  when  any  valuable  vein  has  been  discovered, 
naturally  many  locators  hurry  to  seek  by  early  locations  to  obtain 
some  part  of  that  vein,  or  to  discover  and  appropriate  other  veins 
in  that  vicinity.  Experience  has  shown  that  around  any  new  dis- 
covery there  quickly  grows  up  what  is  called  a  "mining  camp,"  and 
the  contiguous  territory  is  prospected,  and  locations  are  made  in 
every  direction.  In  the  haste  of  such  locations,  the  eagerness  to 
get  a  prior  right  to  a  portion  of  what  is  supposed  to  be  a  valuable 
vein,  it  is  not  strange  that  many  conflicting  locations  are  made ;  and, 
indeed,  in  every  mining  camp  where  large  discoveries  have  been 
made  locations  in  fact  overlap  each  other  again  and  again.  McEvoy 
V.  Hyman,  25  Fed.  596-600.  This  confusion  and  conflict  is  some- 
thing which  must  have  been  expected,  foreseen ;  something  which, 
in  the  nature  of  things,  would  happen,  and  the  legislation  of  con- 
gress must  be  interpreted  in  the  light  of  such  foreseen  contingencies. 
Still  again,  while  a  location  is  required  by  the  statute  to  be  plainly 
marked  on  the  surface  of  the  ground,  it  is  also  provided  in  section 
2324  that,  upon  a  failure  to  comply  with  certain  named  conditions, 
the  claim  or  mine  shall  be  open  to  relocation.  Now,  although  a  lo- 
cator finds  distinctly  marked  on  the  surface  a  location,  it  does 
not  necessarily  follow  therefrom  that  the  location  is  still  valid  and 
subsisting.  On  the  contrary,  the  ground  may  be  entirely  free  for 
him  to  make  a  location  upon.  The  statute  does  not  provide,  and  it 
cannot  be  contemplated,  that  he  is  to  wait  until  by  judicial  proceed- 
ings it  has  become  established  that  the  prior  location  is  invalid,  or 


460  SUB-SURFACE    RIGHTS. 

has  failed,  before  he  may  make  a  location.  He  oug^ht  to  be  at  liberty 
to  make  his  location  at  once,  and  thereafter,  in  the  manner  provided 
in  the  statute,  litigate,  if  necessary,  the  validity  of  the  other  as  well 
as  that  of  his  own  location. 

Congress  has,  in  terms,  provided  for  the  settlement  of  disputes  and 
conflicts,  for  by  section  2325,  when  a  locator  makes  application  for  a 
patent  (thus  seeking  to  have  a  final  determination  by  the  land  de- 
partment of  his  title),  he  is  required  to  make  publication  and  give 
notice  so  as  to  enable  any  one  disputing  his  claim  to  the  entire  ground 
within  his  location  to  know  what  he  is  seeking,  and  any  party  disput- 
ing his  right  to  all  or  any  part  of  the  location  may  institute  adverse 
proceedings.  Then,  by  section  2326,  proceedings  are  to  be  com- 
menced in  some  appropriate  court,  and  the  decision  of  that  court  de- 
termines the  relative  rights  of  the  parties.  And  the  party  who,  by 
that  judgment,  is  shown  to  be  "entitled  to  the  possession  of  the  claim, 
or  any  JDortion  thereof,"  may  present  a  certified  copy  of  the  judg- 
ment roll  to  the  proper  land  officers  and  obtain  a  patent  "for  the 
claim,  or  such  portion  thereof,  as  the  applicant  shall  appear,  from  the 
decision  of  the  court,  to  rightfully  possess."  And  that  the  claim  may 
be  found  to  belong  to  different  persons,  and  that  the  right  of  each 
to  a  portion  may  be  adjudicated,  is  shown  by  a  subsequent  sentence 
in  that  same  section,  which  provides  that,  "if  it  appears  from  a  de- 
cision of  the  court  that  several  parties  are  entitled  to  separate  and 
different  portions  of  the  claim,  each  party  may  pay  for  his  portion 
of  the  claim,  *  ^'  *  and  patents  shall  issue  to  the  several  parties 
according  to  their  respective  rights."  So  it  distinctly  appears  that, 
notwithstanding  the  provision  in  reference  to  the  rights  of  the  lo- 
cators to  the  possession  of  the  surface  ground  within  their  locations, 
it  was  perceived  that  locations  would  overlap,  that  conflicts  would 
arise,  and  a  method  is  provided  for  the  adjustment  of  such  disputes. 
And  this,  too,  it  must  be  borne  in  mind  is  a  statutory  provision  for 
the  final  determination,  and  is  supplementary  to  that  right  to  enforce 
temporary  possession,  which,  in  accordance  with  the  rules  and  regu- 
lations of  mining  districts,  has  always  been  recognized. 

This  question  is  not  foreclosed  by  any  decisions  of  this  court,  as 
suggested  by  counsel.  It  is  true,  there  is  language  in  some  opinions 
which,  standing  alone,  seems  to  sustain  the  contention.  Thus,  in  Belk 
v.  Meagher,  104  U.  S.  279,  284,  it  is  said : 

"Mining  claims  are  not  open  to  relocation  until  the  rights  of  a 
former  locator  have  come  to  an  end.  A  relocator  seeks  to  avail  him- 
self of  mineral  in  the  public  lands  which  another  has  discovered. 
This  he  cannot  do  until  the  discoverer  has  in  law  abandoned  his 
claim,  and  left  the  property  open  for  another  to  take  up.  The  right 
of  location  upon  the  mineral  lands  of  the  United  States  is  a  privilege 
granted  by  congress,  but  it  can  only  be  exercised  within  the  limits 
prescribed  by  the  grant.   A  location  can  only  be  made  where  the  law 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  461 

allows  it  to  be  done.  Any  attempt  to  go  beyond  that  will  be  of  no 
avail.  Hence  a  relocation  on  lands  actually  covered  at  the  time  by 
another  valid  and  subsisting  location  is  void  ;  and  this  not  only  against 
the  prior  locator,  but  all  the  world,  because  the  law  allows  no  such 
thing  to  be  done." 

And  again,  in  Gwillim  v.  Donnellan,  115  U.  S.  45,  49,  5  Sup.  Ct. 
1112: 

"A  valid  and  subsisting  location  of  mineral  lands,  made  and  kept 
up  in  accordance  with  the  provisions  of  the  statutes  of  the  United 
States,  has  the  effect  of  a  grant  by  the  United  States  of  the  right  of 
present  and  exclusive  possession  of  the  lands  located.  If,  when  one 
enters  on  land  to  make  a  location,  there  is  another  location  in  full 
force,  which  entitles  its  owner  to  the  exclusive  possession  of  the  land, 
the  first  location  operates  as  bar  to  the  second." 

The  question  presented  in  each  of  those  cases  was  whether  a  sec- 
ond location  is  effectual  to  appropriate  territory  covered  by  a  prior 
subsisting  and  valid  location,  and  it  was  held  it  is  not.  Of  the  cor- 
rectness of  those  decisions  there  can  be  no  doubt.  A  valid  location 
appropriates  the  surface,  and  the  rights  given  by  such  location  can- 
not, so  long  as  it  remains  in  force,  be  disturbed  by  any  acts  of  third 
parties.  Whatever  rights  on  or  beneath  the  surface  passed  to  the 
first  locator  can  in  no  manner  be  diminished  or  affected  by  a  subse- 
quent location.  But  that  is  not  the  question  here  presented.  Indeed, 
the  form  in  which  it  is  put  excludes  any  impairment  or  disturbance 
of  the  substantial  rights  of  the  prior  locator.  The  question  is  whether 
the  lines  of  a  junior  lode  location  may  be  laid  upon  a  valid  senior 
location  for  the  purpose  of  defining  or  securing  "underground  or  ex- 
tralateral  rights  not  in  conflict  with  any  rights  of  the  senior  location." 
In  other  words,  in  order  to  comply  with  the  statute,  which  requires 
that  the  end  lines  of  a  claim  shall  be  parallel,  and  in  order  to  secure 
all  the  unoccupied  surface  to  which  it  is  entitled,  with  all  the  under- 
ground' rights  which  attach  to  possession  and  ownership  of  the  sur- 
face, may  a  junior  locator  place  an  end  line  within  the  limits  of  a 
prior  location  ? 

In  that  aspect  of  the  question  the  decisions  referred  to,  although 
the  language  employed  is  general  and  broad,  do  not  sustain  the  con- 
tention of  counsel.  This  distinction  is  recognized  in  the  text-books. 
Thus,  in  i  Lindl.  Mines,  §  363,  the  author  says : 

"As  a  mining  location  can  only  be  carved  out  of  the  unappropriated 
public  domain,  it  necessarily  follows  that  a  subsequent  locator  may 
not  invade  the  surface  territory  of  his  neighbors,  and  include  within 
his  boundaries  any  part  of  a  prior  valid  and  subsisting  location.  But 
conflicts  of  surface  area  are  more  than  frequent.  Many  of  them  arise 
from  honest  mistake,  others  from  premeditated  design.  In  both  in- 
stances the  question  of  priority  of  appropriation  is  the  controlling  ele- 
ment which  determines  the  rights  of  the  parties.  Two  locations 
cannot  legally  occupy  the  same  space  at  the  same  time.    These  con- 


462  SUB-SURFACE    RIGHTS. 

fiicts  sometimes  involve  a  segment  of  the  same  vein  on  its  strike; 
at  others  they  involve  the  dip  bounding-  planes  underneath  the  sur- 
face. More  frequently,  however,  they  pertain  to  mere  overlapping 
surfaces.  The  same  principles  of  law  apply  with  equal  force  to  all 
classes  of  cases.  Such  property  rights  as  are  conferred  by  a  valid 
prior  location,  so  long  as  such  location  remains  valid  and  subsisting, 
are  preserved  from  invasion,  and  cannot  be  infringed  or  impaired  by 
subsequent  locators.  To  the  extent,  therefore,  that  a  subsequent  lo- 
cation includes  any  portion  of  the  surface  lawfully  appropriated  and 
held  by  another,  to  that  extent  such  location  is  void." 

It  will  be  seen  that,  while  the  author  denies  the  right  of  a  second 
locator  to  enter  upon  the  ground  segregated  by  the  first  location,  he 
recognizes  the  fact  that  overlapping  locations  are  frequent,  and  de- 
clares the  invalidity  of  the  second  location  so  far  as  it  afifects  the 
rights  vested  in  the  prior  locator,  and  in  that  he  follows  the  cases 
from  which  we  have  quoted. 

The  practice  of  the  land  department  has  been  in  harmony  with  this 
view.  The  patents  which  were  issued  in  this  case  for  the  Last  Chance 
and  New  York  claims  give  the  entire  boundaries  of  the  original  lo- 
cations, and  except  from  the  grant  those  portions  included  within 
prior  valid  locations.  So  that  on  the  face  of  each  patent  appears  the 
original  survey  with  the  parallel  end  lines,  the  territory  granted,  and 
the  territory  excluded.  The  instructions  from  the  land  department 
to  the  surveyors  general  have  been  generally  in  harmony  with  this 
thought.  Thus,  in  a  letter  from  the  commissioner  of  the  land  office 
to  the  surveyor  general  of  Colorado  of  date  November  5,  1874,  re- 
ported in  I  Copp's  Landowner  (page  133),  are  these  instructions: 

'Tn  this  connection  I  would  state  that  the  surveyor  general  has  no 
jurisdiction  in  the  matter  of  deciding  the  respective  rights  of  parties 
in  cases  of  conflicting  claims. 

"Each  applicant  for  a  survey  under  the  mining  act  is  entitled  to  a 
survey  of  the  entire  mining  claim  as  located,  if  held  by  him  in  ac- 
cordance with  the  local  laws  and  congressional  enactments. 

'Tf,  in  running  the  exterior  boundaries  of  a  claim,  it  is  found  that 
two  surveys  conflict,  the  plat  and  field  notes  should  show  the  extent 
of  the  conflict,  giving  the  area  which  is  embraced  in  both  surveys,  and 
also  the  distances  from  the  established  corners  at  which  the  exterior 
boundaries  of  the  respective  surveys  intersect  each  other." 

Again,  in  a  general  circular  issued  by  the  land  department  on  No- 
vember 16,  1882,  found  in  9  Copp's  Landowner  (page  162),  it  is 
said : 

"The  regulations  of  this  office  require  that  the  plats  and  field  notes 
of  surveys  of  mining  claims  shall  disclose  all  conflicts  between  such 
surveys  and  prior  surveys,  giving  the  areas  of  conflicts. 

"The  rule  has  not  been  properly  observed  in  all  cases.  Your  at- 
tention is  invited  to  the  following  particulars,  which  should  be  ob- 
served in  the  survey  of  every  mining  claim  : 


EXTRALATERAL    RIGHTS    UNDER    ACT    lS/2.  463 

"(i)  The  exterior  boundaries  of  the  claim  should  be  represented 
on  the  plat  of  survey  and  in  the  field  notes. 

"(2)  The  intersections  of  the  lines  of  the  survey,  with  the  lines 
of  conflicting  prior  surveys,  should  be  noted  in  the  field  notes  and 
represented  upon  the  plat. 

"(3)  Conflicts  with  unsurveyed  claims,  where  the  applicant  for 
survey  does  not  claim  the  area  in  conflict,  should  be  shown  by  actual 
survey. 

"(4)  The  total  area  of  the  claim  embraced  by  the  exterior  boun- 
daries should  be  stated,  and  also  the  area  in  conflict  with  each  inter- 
secting survey,  substantially  as  follows." 

Again,  on  August  2,  1883,  in  a  letter  from  the  acting  commissioner 
to  the  surveyor  general  of  Arizona,  reported  in  10  Copp's  Land- 
owner, p.  240,  it  is  said : 

"You  state,  and  it  is  shown  to  be  so  by  said  diagram,  that  the  said 
Grand  Dipper  lode,  so  located,  is  a  four-sided  figure  with  parallel 
end  lines,  the  provisions  of  section  2320,  Rev.  St.  U.  S.,  being  fully 
complied  with. 

"The  survey  of  the  claim  made  by  the  deputy  surveyor  cuts  off  a 
portion  of  the  right  end,  shown  to  be  in  conflict  with  the  Emerald 
lode,  the  easterly  end  line  of  the  Emerald  claim  thus  becoming  one 
of  the  boundary  lines  of  the  said  'Grand  Dipper,'  and  not  parallel 
to  the  easterly  end  line  of  the  Grand  Dipper  survey. 

'T  cannot  see  how  you  can  give  your  approval  to  such  survey.  No 
reason  exists  why  the  survey  lines  should  not  conform  directly  to  the 
lines  of  the  location,  they  being  properly  run  in  the  first  instance." 

It  is  true  that  on  December  4,  1884,  a  circular  letter  was  issued  by 
the  land  department  which  slightly  qualifies  the  general  instructions 
previously  issued.  So  that  it  may,  perhaps,  be  truthfully  said  that  the 
practice  of  the  land  department  has  not  been  absolutely  uniform  ;  and 
yet  the  descriptions  which  are  found  in  the  patents  before  us  show 
that,  notwithstanding  the  circular  of  1884,  the  former  practice  still 
obtains. 

It  may  be  said  that  the  statute  gives  to  the  first  locator  the  right 
of  exclusive  possession  ;  that  an  entry  upon  that  territory  with  a  view 
of  making  a  subsequent  location  and  marking  on  the  ground  its  end 
and  side  lines  is  a  trespass;  and  that  to  justify  such  an  entry  is  to 
sanction  a  forcible  trespass,  and  thus  precipitate  a  breach  of  the 
peace.  But  no  such  conclusion  necessarily  follows.  The  case  of 
Atherton  v.  Fowler,  96  U.  S.  513,  illustrates  this.  It  appeared  that 
one  Page  was  in  lawful  possession  of  certain  premises  claimed  under 
a  ]\Iexican  grant,  though  his  title  had  not  laeen  confirmed  by  any 
act  of  congress ;  that  while  so  in  possession  a  party  of  persons,  who 
had  no  interest  or  claim  to  any  part  of  the  land,  invaded  it  by  force, 
tore  down  the  fences,  dispossessed  those  who  occupied,  and  built  on 
and  cultivated  parts  of  it  under  pretense  of  establishing  a  right  of 
pre-emption  to  the  several  parts  which  they  had  so  seized.     It  was 


464  SUB-SURFACE    RIGHTS. 

held  that  such  forcible  seizure  of  the  premises  gave  no  rights  under 
the  pre-emption  law,  and  it  was  said  (page  516)  : 

"It  is  not  to  be  presumed  that  congress  intended,  in  the  remote 
regions  where  these  settlements  are  made,  to  invite  forcible  invasion 
of  the  premises  of  another,  in  order  to  confer  the  gratuitous  right  of 
preference  of  purchase  on  the  invaders.  In  the  parts  of  the  country 
where  these  pre-emptions  are  usually  made,  the  protection  of  the  law 
to  rights  of  person  and  property  is  generally  but  imperfect  under  the 
best  of  circumstances.  It  cannot,  therefore,  be  believed,  without  the 
strongest  evidence,  that  congress  has  extended  a  standing  invitation 
to  the  strong,  the  daring,  and  the  unscrupulous  to  dispossess  by  force 
the  weak  and  the  timid  from  actual  improvements  on  the  public 
lands,  in  order  that  the  intentional  trespasser  may  secure  by  these 
means  the  preferred  right  to  buy  the  land  of  the  government  when  it 
comes  into  market." 

But,  while  thus  declaring  that  it  cannot  be  presumed  that  congress 
countenanced  any  such  forcible  seizure  of  premises,  the  court  also 
observed  (page  516)  : 

"Undoubtedly,  there  have  been  cases,  and  may  be  cases  again, 
where  two  persons  making  settlement  on  different  parts  of  the  same 
quarter  section  of  land  may  present  conflicting  claims  to  the  right  of 
pre-emption  of  the  whole  quarter  section,  and  neither  of  them  be  a 
trespasser  upon  the  possession  of  the  other,  for  the  reason  that  the 
quarter  section  is  open,  uninclosed,  and  neither  party  interferes  with 
the  actual  possession  of  the  other.  In  such  cases,  the  settlement  of 
the  latter  of  the  two  may  be  bona  fide  for  many  reasons.  The  first 
party  may  not  have  the  qualifications  necessary  to  a  pre-emptor,  or 
he  may  have  pre-empted  other  land,  or  he  may  have  permitted  the 
time  for  filing  his  declaration  to  elapse,  in  wdiich  case  the  statute 
expressly  declares  that  another  person  may  become  pre-emptor,  or  it 
may  not  be  known  that  the  settlements  are  on  the  same  quarter." 

The  distinction  thus  suggested  is  pertinent  here.  A  party  who  is 
in  actual  possession  of  a  valid  location  may  maintain  that  possession, 
and  exclude  every  one  from  trespassing  thereon,  and  no  one  is  at 
liberty  to  forcibly  disturb  his  possession  or  enter  upon  the  premises. 
At  the  same  time  the  fact  is  also  to  be  recognized  that  these  locations 
are  generally  made  upon  lands  open,  uninclosed,  and  not  subject  to 
any  full  actual  occupation,  where  the  limits  of  possessory  rights  are 
vague  and  uncertain,  and  where  the  validity  of  apparent  locations  is 
unsettled  and  doubtful.  Under  those  circumstances  it  is  not  strange 
— on  the  contrary,  it  is  something  to  be  expected  and,  as  we  have 
seen,  is  a  common  experience — that  conflicting  locations  are  made, 
one  overlapping  another,  and  sometimes  the  overlap  repeated  by 
many  different  locations.  And  while,  in  the  adjustment  of  those  con- 
flicts, the  rights  of  the  first  locator  to  the  surface  within  his  location, 
as  well  as  to  veins  beneath  his  surface,  must  be  secured  and  con- 
firmed, why  should  a  subsequent  location  be  held  absolutely  void  for 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  465 

all  purposes,  and  wholly  ignored?  Recognizing  it  so  far  as  it  estab- 
lishes the  fact  that  the  second  locator  has  made  a  claim,  and  in 
making  that  claim  has  located  parallel  end  lines,  deprives  the  first 
locator  of  nothing.  Certainly,  if  the  rights  of  the  prior  locator  are 
not  infringed  upon,  who  is  prejudiced  by  awarding  to  the  second  lo- 
cator all  the  benefits  which  the  statute  gives  to  the  making  of  a 
claim  ?  To  say  that  the  subsequent  locator  must — when  it  appears 
that  his  lines  are  to  any  extent  upon  territory  covered  by  a  prior 
valid  location — go  through  the  form  of  making  a  relocation,  simply 
works  delay,  and  may  prevent  him,  as  we  have  seen,  from  obtaining 
an  amount  of  surface  to  which  he  is  entitled,  unless  he  abandons  the 
underground  and  extralateral  rights  which  are  secured  only  by  par- 
allel end  lines. 

In  this  connection  it  may  be  properly  inquired,  what  is  the  sig- 
nificance of  parallel  end  lines?  Is  it  to  secure  to  the  locator  in  all 
cases  a  tract  in  the  shape  of  a  parallelogram?  Is  it  that  the  surveys 
of  mineral  land  shall  be  like  the  ordinary  public  surveys  in  rectangu- 
lar form,  capable  of  easy  adjustment,  and  showing  upon  a  plat  that 
even  measurement  which  is  so  marked  a  feature  of  the  range,  town- 
ship, and  section  system?  Clearly  not.  While  the  contemplation  of 
congress  may  have  been  that  every  location  should  be  in  the  form 
of  a  parallelogram,  not  exceeding  1,500  by  600  feet  in  size,  yet  the 
purpose  also  was  to  permit  the  location  in  such  a  way  as  to  secure 
not  exceeding  1,500  feet  of  the  length  of  a  discovered  vein,  and  it 
was  expected  that  the  locator  would  so  place  it  as,  in  his  judgment, 
would  make  the  location  lengthwise  cover  the  course  of  the  vein. 
There  is  no  command  that  the  side  lines  shall  be  parallel,  and  the 
requisition  that  the  end  lines  shall  be  parallel  was  for  the  purpose  of 
bounding  the  underground  extralateral  rights  which  the  owner  of 
the  location  may  exercise.  He  may  pursue  the  vein  downward  out- 
side the  side  lines  of  his  location,  but  the  limits  of  his  right  are  not 
to  extend  on  the  course  of  the  vein  beyond  the  end  lines  projected 
downward  through  the  earth.  His  rights  on  the  surface  are  bounded 
by  the  several  lines  of  his  location,  and  the  end  lines  must  be  parallel, 
in  order  that  going  downward  he  shall  acquire  no  further  length 
of  the  vein  than  the  planes  of  those  lines  extended  downward  inclose. 
If  the  end  lines  are  not  parallel,  then,  following  their  planes  down- 
ward, his  rights  will  be  either  converging  and  diminishing  or  diverg- 
ing and  increasing  the  further  he  descends  into  the  earth.  In  view 
of  this  purpose  and  efifect  of  the  parallel  end  lines,  it  matters  not  to 
the  prior  locator  where  the  end  lines  of  the  junior  location  are  laid. 
No  matter  where  they  may  be,  they  do  not  disturb  in  the  slightest  his 
surface  or  underground  rights. 

For  these  reasons,  therefore,  we  are  of  opinion  that  the  first  ques- 
tion must  be  answered  in  the  affirmative.^ 

°  See  an  article  on  "An  Anomaly  in  Mininpr  Law"  by  Judge  Theodore 
Brantly  in  20  Yale  Law  Journal  548. 

30 — Mining  Law 


466  SUB-SURFACE    RIGHTS. 

It  may  be  observed  in  passing  that  the  answer  to  this  question  does 
not  involve  a  decision  as  to  the  full  extent  of  the  rights  beneath  the 
surface  which  tlie  junior  locator  acquires.  In  other  words,  referring 
to  the  first  diagram,  the  inquiry  is  not  whether  the  owners  of  the  Last 
Chance  have  a  right  to  pursue  the  vein  as  it  descends  into  the  ground 
south  of  the  dotted  line  r,  s,  even  though  they  should  reach  a  point 
in  the  descent  in  which  the  rights  of  the  owners  of  the  New  York, 
the  prior  location,  have  ceased.  It  is  obvious  that  the  line  e,  h,  the 
end  line  of  the  New  York  claim,  extended  downward  into  the  earth 
will  at  a  certain  distance  pass  to  the  south  of  the  line  r,  s,  and  a  trian- 
gle of  the  vein  will  be  formed  between  the  two  lines,  which  does  not 
pass  to  the  owners  of  the  New  York.  The  question  is  not  distinctly 
presented  v/hether  that  triangular  portion  of  the  vein  up  to  the  limits 
of  the  south  end  line  of  the  Last  Chance,  b,  c,  extended  vertically 
into  the  earth,  belongs  to  the  owners  of  the  Last  Chance  or  not,  and 
therefore  we  do  not  pass  upon  it.  Perhaps  the  rights  of  the  junior 
locator  below  the  surface  are  limited  to  the  length  of  the  vein  within 
the  surface  of  the  territory  patented  to  him,  but  it  is  unnecessary  now 
to  consider  that  matter.^**  All  that  comes  fairly  within  the  scope  of 
the  question  before  us  is  the  right  of  the  owners  of  the  Last  Chance 
to  pursue  the  vein  as  it  dips  into  the  earth  westwardly  between  the 
line  a,  d,  t  and  the  line  r,  s,  and  to  appropriate  so  much  of  it  as  is 
not  held  by  the  prior  location  of  the  New  York,  and  to  that  extent 
only  is  the  question  answered.  The  junior  locator  is  entitled  to  have 
the  benefit  of  making  a  location  with  parallel  end  lines.  The  extent 
of  that  benefit  is  for  further  consideration. 

The  second  question  needs  no  other  answer  than  that  which  is  con- 
tained in  the  discussion  we  have  given  to  the  first  question,  and  we 
therefore  pass  it. 

The  third  question  is  also  practically  answered  by  the  same  con- 
siderations, and,  in  the  view  we  have  taken  of  the  statutes,  the  east- 
erly side  of  the  New  York  lode  mining  claim  is  not  the  end  line  of 
the  Last  Chance  lode  mining  claim. 

The  fourth  question  presents  a  matter  of  importance,  particularly 
in  view  of  the  inferences  which  have  been  drawn  by  some  trial  courts, 
state  and  national,  from  the  decisions  of  this  court.    That  question  is : 

"If  the  apex  of  a  vein  crosses  one  end  line  and  one  side  line  of  a 
lode  mining  claim,  as  located  thereon,  can  the  locator  of  such  vein 
follow  it  upon  its  dip  beyond  the  vertical  side  line  of  his  location  ?" 

The  decisions  to  which  we  refer  are  Mining  Co.  v.  Tarbet,  98  U.  S. 
463;  Iron  Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co.,  118  U. 
S.  196,  6  Sup.  Ct.  1 177;  Argentine  Min.  Co.  v.  Terrible  Min.  Co., 
122  U.  S.  478,  7  Sup.  Ct.  1356;  King  v.  Mining  Co.,  152  U.  S.  222, 
14  Sup.  Ct.  510. 

Two  of  these  cases  have  been  already  noticed  in  this  opinion.     In 

"  See  note  13,  post. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  467 

Mining  Co.  v.  Tarbet  a  surface  location  2,600  feet  long  and  100  feet 
wide  had  been  made.  This  location  was  so  made  on  the  supposition 
that  it  followed  lengthwise  the  course  of  the  vein,  and  the  claim  was 
of  the  ownership  of  2,600  feet  in  length  of  such  vein.  Subsequent 
explorations  developed  that  the  course  of  the  vein  was  at  right  an- 
gles to  that  which  had  been  supposed,  and  that  it  crossed  the  side 
lines,  so  that  there  was  really  but  100  feet  of  the  length  of  the  vein 
within  the  surface  area.  It  was  held  that  the  side  lines  were  to  be 
regarded  as  the  end  lines.  In  Iron  Silver  Min.  Co.  v.  Elgin  Min.  Co. 
the  location  was  in  the  form  of  a  horseshoe.  The  end  lines  were  not 
parallel.  The  location  was  cjuite  irregular  in  form,  and,  inasmuch  as 
one  of  the  side  lines  was  substantially  parallel  with  one  of  the  end 
lines,  it  was  contended  that  this  side  line  should  be  considered  an  end 
line,  and  this  although  the  vein  did  not  pass  through  such  side  line. 
But  the  court  refused  to  recognize  any  such  contention,  and  held  that 
the  end  lines  were  those  which  were  in  fact  end  lines  of  the  claim  as 
located,  and  that,  as  they  were  not  parallel,  there  was  no  right  to 
follow  the  vein  on  its  dip  beyond  the  side  lines.  In  Argentine  Min. 
Co.  V.  Terrible  Min.  Co.  the  claims  of  the  plaintiff  and  defendant 
crossed  each  other  and  in  its  decision  the  court  affirmed  the  ruling 
in  Mining  Co.  v.  Tarbet,  saying  (page  485,  98  U.  S.)  : 

"When,  therefore,  a  mining  claim  crosses  the  course  of  the  lode  or 
vein  instead  of  being  'along  the  vein  or  lode,'  the  end  lines  are  those 
which  measure  the  width  of  the  claim  as  it  crosses  the  lode.  Such 
is  evidently  the  meaning  of  the  statute.  The  side  lines  are  those 
which  measure  the  extent  of  the  claim  on  each  side  of  the  middle  of 
the  vein  at  the  surface." 

In  King  v.  Mining  Co.  the  prior  cases  were  reaffirmed,  and  those 
lines  which  on  the  face  of  the  location  were  apparently  side  lines 
were  adjudged  end  lines  because  the  vein  on  its  course  passed 
through  them,  the  location  being  not  along  the  course  of  the  vein  but 
across  it.  But  in  neither  of  these  cases  v/as  the  question  now  before 
us  presented  or  determined.  All  that  can  be  said  to  have  been  settled 
by  them  is :  First,  that  tlie  lines  of  the  location  as  made  by  the  locator 
are  the  only  lines  that  will  be  recognized ;  that  the  courts  have  no 
power  to  establish  new  lines  or  make  a  new  location ;  second,  that  the 
contemplation  of  the  statute  is  that  the  location  shall  be  along  the 
course  of  the  vein,  reading,  as  it  does,  that  a  mining  claim  "may 
equal,  but  shall  not  exceed,  1,500  feet  in  len.gth  along  the  vein  or 
lode" ;  and,  third,  that  when  subsequent  explorations  disclose  that 
the  location  has  been  made  not  along  the  course  of  the  vein,  but 
across  it,  the  side  lines  of  the  location  become  in  law  the  end  lines. 
Nothing  was  said  in  either  of  these  cases  as  to  how  much  of  the  apex 
of  the  vein  must  be  found  within  the  surface,  or  what  rule  obtains 
in  case  the  vein  crosses  only  one  end  line.  So,  when  Last  Chance 
Min.  Co.  v.  Tyler  Min.  Co.,  157  U.  S.  683,  696,  15  Sup.  Ct.  733,  was 
before  us  (in  which  the  question  here  stated  was  presented,  but  not 


468  SUB-SURFACE    RIGHTS. 

decided,  the  case  being  disposed  of  on  another  ground),  we  said, 
after  referring  to  the  prior  cases,  "But  there  has  been  no  decision  as 
to  what  extraterritorial  rights  exist  if  a  vein  enters  at  one  end  and 
passes  out  at  a  side  Hne." 

We  pass,  therefore,  to  an  examination  of  the  provisions  of  the 
statute.  Premising  that  the  discoverer  of  a  vein  makes  the  location ; 
that  he  is  entitled  to  make  a  location  not  exceeding  1,500  feet  in 
length  along  the  course  of  such  vein,  and  not  exceeding  "three  hun- 
dred feet  on  each  side  of  the  middle  of  the  vein  at  the  surface" ; 
that  a  location  thus  made  discloses  end  and  side  lines ;  that  he  is  re- 
quired to  make  the  end  lines  parallel ;  that  by  such  parallel  end  lines 
he  places  limits  not  merely  to  the  surface  area,  but  limits  beyond 
which  below  the  surface  he  cannot  go  on  the  course  of  the  vein; 
that  it  must  be  assumed  that  he  will  take  all  of  the  length  of  the 
vein  that  he  can, — we  find  from  section  2322  that  he  is  entitled  to 
"all  veins,  lodes,  and  ledges  throughout  their  entire  depth,  the  top 
or  apex  of  which  lies  inside  of  such  surface  lines  extended  downward 
vertically."  Every  vein  whose  apex  is  within  the  vertical  limits  of 
his  surface  lines  passes  to  him  by  virtue  of  his  location.  He  is  not 
limited  to  only  those  veins  which  extend  from  one  end  line  to  an- 
other, or  from  one  side  line  to  another,  or  from  one  line  of  any  kind 
to  another,  but  he  is  entitled  to  every  vein  whose  top  or  apex  lies 
within  his  surface  lines.  Not  only  is  he  entitled  to  all  veins  whose 
apexes  are  within  such  limits,  but  he  is  entitled  to  them  throughout 
their  entire  depth,  "although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  perpendicular  in  their  course  downward  as  to  extend 
outside  the  vertical  side  lines  of  such  surface  locations."  In  other 
words,  given  a  vein  whose  apex  is  within  his  surface  limits  he  can 
pursue  that  vein  as  far  as  he  pleases  in  its  downward  course  outside 
the  vertical  side  lines.  But  he  can  pursue  the  vein  in  its  depth  only 
outside  the  vertical  side  lines  of  his  location,  for  the  statute  provides 
that  the  "right  of  possession  to  such  outside  parts  of  such  veins  or 
ledges  shall  be  confined  to  such  portion  thereof  as  lie  between  verti- 
cal planes  drawn  downward  as  above  described,  through  the  end 
lines  of  their  locations,  so  continued  in  their  own  direction  that  such 
planes  will  intersect  such  exterior  parts  of  such  veins  or  lodes." 

This  places  a  limit  on  the  length  of  the  vein  beyond  which  he  may 
not  go,  but  it  does  not  say  that  he  shall  not  go  outside  the  vertical 
side  lines  unless  the  vein  in  its  course  reaches  the  vertical  planes  of 
the  end  lines.  Nowhere  is  it  said  that  he  must  have  a  vein  which 
either  on  or  below  the  surface  extends  from  end  line  to  end  line  in 
order  to  pursue  that  vein  in  its  dip  outside  the  vertical  side  lines. 
Naming  limits  beyond  which  a  grant  does  not  go  is  not  equivalent  to 
saying  that  nothing  is  granted  which  does  not  extend  to  those  limits. 
The  locator  is  given  a  right  to  pursue  any  vein  whose  apex  is  within 
his  surface  limits,  on  its  dip  outside  the  vertical  side  lines,  but  may 
not  in  such  pursuit  go  beyond  the  vertical  end  lines.    And  this  is  all 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  469 

that  the  statute  provides.  Suppose  a  vein  enters  at  an  end  Hne,  but 
terminates  half  way  across  the  length  of  the  location,  his  right  to 
follow  that  vein  on  its  dip  beyond  the  vertical  side  lines  is  as  plainly 
given  by  the  statute  as  though  in  its  course  it  had  extended  to  the 
further  end  line.  It  is  a  vein,  "the  top  or  apex  of  which  lies  outside 
of  such  surface  lines  extended  downward  vertically."  And  the  same 
is  true  if  it  enters  at  an  end  and  passes  out  at  a  side  line. 

Our  conclusions  may  be  summed  up  in  these  propositions :  First, 
the  location  as  made  on  the  surface  by  the  locator  determines  the 
extent  of  rights  below  the  surface ;  second,  the  end  lines,  as  he 
marks  them  on  the  surface,  with  the  single  exception  hereinafter 
noticed,  place  the  limits  beyond  which  he  may  not  go  in  the  appro- 
priation of  any  vein  or  veins  along  their  course  or  strike ;  third, 
every  vein  "the  top  or  apex  of  which  lies  inside  of  such  surface 
lines  extended  downward  vertically"  becomes  his  by  virtue  of  his 
location,  and  he  may  pursue  it  to  any  depth  beyond  his  vertical  side 
lines,  although  in  so  doing  he  enters  beneath  the  surface  of  some 
other  proprietor ;  fourth,  the  only  exception  to  the  rule  that  the  end 
lines  of  the  location  as  the  locator  places  them  establish  the  lim- 
its beyond  which  he  may  not  go  in  the  appropriation  of  a  vein  on  its 
course  or  strike  is  where  it  is  developed  that  in  fact  the  location  has 
been  placed,  not  along,  but  across,  the  course  of  the  vein.  In  such 
case  the  law  declares  that  those  which  the  locator  called  his  side  lines 
are  his  end  lines,  and  those  which  he  called  end  lines  are  in  fact  side 
lines ;  and  this  upon  the  proposition  that  it  was  the  intent  of  congress 
to  give  to  the  locator  only  so  many  feet  of  the  length  of  the  vein,  that 
length  to  be  bounded  by  the  lines  which  the  locator  has  established 
of  his  location.  "Our  laws  have  attempted  to  establish  a  rule  by 
which  each  claim  shall  be  so  many  feet  of  the  vein,  lengthwise  of  its 
course,  to  any  depth  below  the  surface,  although  laterally  its  incli- 
nation shall  carry  it  ever  so  far  from  a  perpendicular."  Mining  Co. 
v.  Tarbet,  98  U.  S.  463,  468. 

These  conclusions  find  support  in  the  following  decisions  :  Stevens 
V.  Williams,  i  McCrary,  480,  490,  Fed.  Cas.  No.  13,413,  in  which 
is  given  the  charge  of  Mr.  Justice  Miller  to  a  jury,  in  the  course  of 
which  he  says :  "You  must  take  all  the  evidence  together ;  you  must 
take  the  point  where  it  ends  on  the  south,  where  it  ends  on  the 
north,  where  it  begins  on  the  west  and  is  lost  on  the  east,  and  the 
course  it  takes ;  and  from  all  that  you  are  to  say  what  is  its  general 
course.  The  plaintiff  is  not  bound  to  lay  his  side  lines  perfectly  par- 
allel with  the  course  or  strike  of  the  lode,  so  as  to  cover  it  exactly. 
His  location  may  be  made  one  way  or  the  other,  and  it  may  so  run 
that  he  crosses  it  the  other  way.  In  such  event  his  end  lines  become 
his  side  lines,  and  he  can  only  pursue  it  to  his  side  lines,  vertically 
extended,  as  though  they  were  his  end  lines ;  but,  if  he  happens  to 
strike  out  diagonally,  as  far  as  his  side  lines  include  the  apex,  so 
far  he  can  pursue  it  laterally."  Wakeman  v.  Norton  (decided  by  the 


470  SUB-SURFACE    RIGHTS. 

supreme  court  of  Colorado,  June  i,  1897)  49  Pac.  283,  in  which  Mr. 
Justice  Goddard,  whose  opinions,  by  virtue  of  his  long  experience  as 
trial  judge  in  the  mining  districts  of  Leadville  and  Aspen  as  well  as 
on  the  supreme  bench  of  the  state,  are  entitled  to  great  considera- 
tion, said  (page  286)  :  "In  instructing  the  jury  that,  in  order  to 
give  any  extralateral  rights,  it  was  essential  that  the  apex  or  top  of 
a  vein  should  on  its  course  pass  through  both  end  lines  of  a  claim, 
the  court  imposed  a  condition  that  has  not  heretofore  been  announced 
as  an  essential  to  the  exercise  of  such  right  in  any  of  the  adjudicated 
cases."  Fitzgerald  v.  Clark,  17  Mont.  100,  42  Pac.  273, — a  case  now 
pending  in  this  court  on  writ  of  error.  Tyler  Min.  Co.  v.  Last  Chance 
Min.  Co.  (court  of  appeals.  Ninth  circuit,  decided  by  Circuit  Judge 
McKenna,  now  a  justice  of  this  court.  Circuit  Judge  Gilbert,  and 
District  Judge  Hawley)  7  U.  S.  App.  463,  4  C.  C.  A.  329,  and  54 
Fed.  284.  Consolidated  Wyoming  Gold  Min.  Co.  v.  Champion  Min. 
Co.  (circuit  court,  Northern  district,  California,  decided  by  Hawley, 
District  Judge)  63  Fed.  540.  Tyler  Min.  Co.  v.  Last  Chance  Min. 
Co.  (circuit  court,  district  of  Idaho),  decided  by  Beatty,  District 
Judge,  who,  in  the  course  of  his  opinion  pertinently  observed: 
"What  reason,  under  the  law,  can  be  assigned  why  these  rights  shall 
not  apply  when  his  location  is  such  that  his  ledge  passes  through  it 
in  some  other  way  than  from  end  to  end  ?  The  law  does  not  say 
that  his  ledge  must  run  from  end  to  end,  but  he  is  granted  this  right 
of  following  'all  veins,  lodes,  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  which  lies  inside  of  his  surface  lines.'  Upon 
the  fact  that  an  apex  is  within  his  surface  lines,  all  his  underground 
rights  are  based.  When,  then,  he  owns  an  apex,  whether  it  extends 
through  the  entire  or  through  but  a  part  of  its  location,  it  should 
follow  that  he  owns  an  equal  length  of  the  ledge  to  its  utmost  depth. 
These  are  the  important  rights  granted  by  the  law.  Take  them  away, 
and  we  take  all  from  the  law  that  is  of  value  to  the  miner."  71  Fed. 
848,  851.  Carson  City  Gold  &  Silver  Min.  Co.  v.  North  Star  Min. 
Co.  (circuit  court.  Northern  district  of  California,  decided  by  Beatty, 
District  Judge)  73  Fed.  597.  Republican  Min.  Co.  v.  Tyler  Min.  Co. 
(circuit  court  of  appeals.  Ninth  circuit,  decided  by  Circuit  Judges 
Gilbert  and  Ross  and  District  Judge  Hawley)  48  U.  S.  App.  213, 
25  C.  C.  A.  178,  and  79  Fed.  733.  See,  also,  2  Lindl.  Mines,  §  591. 

The  fourth  question,  therefore,  is  answered  in  the  affirmative. 

The  fifth  question,  in  effect,  seeks  from  this  court  a  decision  of  the 
whole  case,  and  therefore  is  not  one  which  this  court  is  called  upon 
to  answer.  Cross  v.  Evans,  167  U.  S.  60,  17  Sup.  Ct.  733;  Warner 
V.  New  Orleans,  167  U.  S.  467,  17  Sup.  Ct.  892. 

It  will  therefore  be  certified  to  the  court  of  appeals  that  the  first 
question  is  answered  in  the  affirmative,  the  third  in  the  negative,  the 
fourth  in  the  affirmative.   The  second  and  fifth  are  not  answered. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  4/1 

STATE  EX  REL.  ANACONDA  COPPER-MIN.   CO.   et  al.   v. 

DISTRICT  COURT  OF  SECOND  JUDICIAL  DIST. 

OF  SILVER  BOW  COUNTY  et  al. 

1901.     Supreme  Court  of  Montana.     25  Mont.  504,  65  Pac.  1020. 

Application  by  the  state,  on  the  relation  of  the  Anaconda  Cop- 
per-]Mining  Company  and  another,  for  a  writ  of  supervisory  control 
directing  the  judge  of  the  district  court  of  the  Second  judicial  dis- 
trict of  Silver  Bow  county  and  another  to  reverse  an  order  issued 
in  proceedings  therein.    Writ  issued. 

Brantly,  C.  J.^' — On  December  20,  1899,  o^^e  Burdette  O'Con- 
nor brought  an  action  in  the  district  court  of  Silver  Bow  county 
against  the  Anaconda  Copper-Mining  Company  and  the  Washoe  Cop- 
per Company,  corporations,  the  relators  herein,  alleging  that  he  was 
the  owner  of  the  Copper  Trust  lode  claim,  situate  in  Silver  Bow  coun- 
ty, and  that  the  defendants  had  theretofore  trespassed  upon  his  rights 
therein  by  entering  within  its  boundaries,  and  extracting  and  car- 
rying away  ores  therefrom  to  the  value  of  $2,000,000,  to  his  damage 
in  that  amount.  Under  a  separate  cause  of  action  incidental  relief 
was  sought  by  way  of  injunction.  The  cause  is  still  pending  in  the 
district  court,  the  issues  therein  not  having  been  made  up  at  the 
time  the  present  controversy  arose.  On  March  26,  1901,  for  the 
purpose  of  obtaining  evidence  to  aid  him  in  the  trial  of  said  cause, 
the  said  O'Connor  filed  therein  a  petition  asking  the  court  for  an 
order  permitting  him  to  inspect  and  survey  all  the  underground 
workings  in  the  Anaconda,  St.  Lawrence,  Never  Sweat,  Rob  Roy, 
Grant,  Grant  Extension,  Parrott,  Lot  45  C,  and  the  Cuerpo  Bazzo 
lode  claim,  and  also  in  the  Leggatt  and  Foster  placer  claim,  all  of 
which  the  complaint  alleges  are  in  possession  of  defendants,  or  one 
of  them,  and  through  which  defendants  had  entered  upon  the  ore 
bodies  belonging  to  the  Copper  Trust,  and  committed  the  trespasses 
complained  of.  The  situation  of  the  ore  bodies  in  controversy,  as 
shown  by  the  evidence  submitted  to  the  court  at  the  hearing,  and 
the  respective  claims  of  the  contending  parties,  will  be  readily  un- 
-derstood  from  the  subjoined  diagram  :^^^ 

The  exterior  boundaries  of  the  Copper  Trust  lode  are  indicated 
by  the  heavy  lines.  This  claim  overlies  the  Smoke  Stack  lode,  and 
most  of  the  surface  of  the  St.  Lawrence.  It  will  be  noted  that  all 
•of  the  claims  mentioned,  both  the  Copper  Trust  and  those  belonging 
to  the  relators,  have  parallel  end  lines.  All  of  the  claims  belonging 
to  relators  are  held  by  patents  issued  at  various  times  up  to  and  in- 
cluding November  2,  1892,  when  the  patent  to  the  Cuerpo  Bazzo 
claim  was  issued.  It  will  also  be  noted  that  some  of  the  boundary 
lines  of  the  Smoke  Stack  claim,  as  originally  located,  were  laid  upon 

"  Parts  of  the  opinion  are  omitted. 
^^2  The  diagram  is  on  the  next  page. 


472 


SUB-SURFACE    RIGHTS. 


and  over  the  surface  included  within  the  Hues  of  the  Mountain  View 
and  F'airmount,  to  the  north.  The  patent  to  the  former  excludes 
the  conflicting  surface.  It  is  admitted  by  the  parties  that  all  of  the 
surface  to  the  south  and  southwest  of  the  Smoke  Stack  claim  is  cov- 


Leas/vr  AHo  FosTcn 
Placer 


ered  by  the  patents  of  relators.  The  Copper  Trust  is  an  unpatented 
claim.  It  was  located  on  April  30,  1899,  by  virtue  of  an  alleged  dis- 
covery made  on  that  date  in  the  small  triangle,  then  vacant,  which  is 
indicated  by  the  letters  A,  B,  10  feet  in  width  at  the  base  and  ex- 
tending east  between  the  lines  of  the  Johnstown  and  Mountain  View 
to  its  apex,  a  distance  of  75  feet.  The  only  other  ground  embraced 
within  the  limits  of  the  Copper  Trust  not  covered  by  the  relators' 
patents  is  a  small  triangle  at  the  point  C,  between  the  east  end  line 
of  the  Mountain  View  and  a  claim  known  as  the  Sullivan,  lying  im- 
mediately to  the  east.  It  does  not  appear  whether  there  is  any  apex 
within  the  exterior  boundaries  of  the  triangle  last  mentioned.  The 
contention  made  by  O'Connor  was  and  is  that  the  vein  thus  discov- 
ered in  the  first  triangle  mentioned  dips  to  the  south  at  an  angle  of 
about  70  degrees,  and  passes  on  its  strike  through  the  base  of  the 
triangle  into  the  Smoke  Stack  claim,  thence  across  its  south  side  line 
into  the  St.  Lawrence,  and  thence  into  the  Anaconda  claim  across 
the  west  end  line  of  the  former  at  the  point  D,  about  150  feet  north 
of  the  intersection  of  this  line  with  the  east  end  line  of  the  latter  at 
the  point  G.  The  course  of  it,  under  this  contention,  is  indicated 
approximately  by  the  position  of  the  letters  B,  A,  E,  D.  O'Connor 
further  contends  that  under  the  Copper  Trust  location  he  is  entitled 
not  only  to  the  surface  within  his  boundaries  not  covered  by  the 
relators'  patents,  but  also  to  all  portions  of  the  lead  having  their 


EXTRALATERAL   RIGHTS    UNDER    ACT    1872.  473 

apex  therein,  as  well  as  to  those  parts  of  it  which,  though  they  have 
no  apex  within  his  surface,  are  so  situated  with  reference  to  the  end 
lines  of  relators'  claims  that  the  relators  may  not  assert  title  to  them 
by  virtue  of  their  extralateral  rights.  In  other  words,  it  is  asserted 
that  the  relators  have  no  extralateral  rights  upon  this  vein,  either 
through  the  Anaconda  or  the  St.  Lawrence,  south  of  the  intersection 
of  the  end  lines  of  these  claims  at  G,  and  within  the  triangular  por- 
tion of  the  earth  included  between  the  vertical  planes  passing  down- 
ward through  these  lines  extended  in  their  own  direction  indefinitely 
towards  the  south.  He  contends,  therefore,  that,  inasmuch  as  the 
relators,  in  making  their  locations,  did  not  so  lay  their  lines  with 
reference  to  the  strike  of  the  vein  that  they  could  follow  it  on  its 
dip  into  this  portion  of  the  earth  by  virtue  of  their  extralateral 
rights,  they  failed  to  appropriate  it  at  all ;  that  it  was  thus  left  to  be 
appropriated  by  any  other  claimant ;  and  that  it  belongs  to  the  plain- 
tiff under  his  location.  The  position  of  the  relators  is  that,  though 
they  do  not  have  title  to  the  ores  in  the  ground  in  question  by  virtue 
of  extralateral  rights  through  the  St.  Lawrence  and  the  Anaconda, 
they  nevertheless  own  them,  as  against  O'Connor,  at  least,  by  virtue 
of  their  common-law  rights  to  the  surface  and  everything  beneath, 
because  neither  O'Connor  nor  any  one  else  owns  any  part  of  the 
apex  of  the  vein,  which  is  so  situated  that  extralateral  rights 
through  such  portion  may  be  asserted  to  anything  beneath  the  sur- 
face owned  by  them.  Therefore,  they  say,  O'Connor  has  shown  no 
right  to  any  part  of  the  ores  in  controversy  such  as  to  authorize  the 
court  to  grant  an  order  permitting  him  to  make  the  inspection  and 
survey  sought.  Upon  the  facts  presented,  the  court  overruled  the 
contention  of  the  relators,  and  granted  the  order  as  prayed.  Under 
it  O'Connor  was  granted  the  right  to  enter  into  any  or  all  tjie  un- 
derground workings  in  all  the  claims  mentioned  belonging  to  the 
relators  to  the  south  and  west  of  the  Smoke  Stack  claim  for  the 
period  of  40  days ;  to  employ  six  engineers  and  assistants  to  conduct 
the  work  of  survey  and  inspection ;  and  to  demand,  at  reasonable 
times,  of  the  relators,  that  he  and  his  said  engineers  and  assistants 
be  lowered  into  the  mines  and  hoisted  therefrom  to  the  surface 
whenever  he  and  they  should  require  the  same  to  be  done.  The 
relators,  by  a  verified  petition  setting  forth  all  the  proceedings,  in- 
cluding the  pleadings  in  the  cause,  and  all  the  evidence  submitted 
by  the  parties,  and  alleging  that  O'Connor  had  not  brought  his  ac- 
tion or  made  his  application  to  the  district  court  in  good  faith,  ap- 
plied to  this  court  for  relief,  asking  that  this  court  issue  a  writ,  un- 
der its  constitutional  powers  of  supervisory  control  over  the  inferior 
courts  of  the  state,  directing  the  district  court  and  its  judge  to  set 
aside  and  vacate  the  order,  and  to  deny  the  application  for  an  in- 
spection and  survey. 

The  theory  of  the  relators  is  that  upon  the  facts  the  district  court 


474  SUB-SURFACE    RIGHTS. 

abused  its  discretion,  and  acted  arbitrarily,  and  in  plain  violation  of 
the  legal  rights  of  the  relators,  in  granting  the  order,  and  that  they 
are  without  redress  by  any  other  means  known  to  the  law.  Under 
an  order  to  show  cause,  issued  by  this  court,  the  respondents  ap- 
peared by  filing  an  answer  denying  the  charges  of  bad  faith  on  the 
part  of  O'Connor,  and  also  a  motion  to  dismiss  the  application  on 
several  grounds.     *     '■'     * 

It  appears  that  two,  and  only  two,  questions  are  presented  for 
decision,  namely :  Was  the  action  of  the  district  court  in  granting 
the  order  erroneous?  and  can  this  court  afford  relief,  and,  if  so, 
what  is  the  proper  remedy?  We  shall  consider  these  in  their  order, 
and,  incidentally,  also  the  further  question  whether,  if  the  order  is 
found  to  have  been  erroneous,  the  circumstances  present  such  a  case 
as  will  justify  this  court  in  using  any  remedy  which  it  may  deem 
available. 

Sections  13 14  and  13 15  of  the  Code  of  Civil  Procedure,  under 
which  the  order  was  made,  provide : 

"Sec.  13 14.  The  court  in  which  an  action  is  pending  for  the  re- 
covery of  real  property  or  mining  claims,  or  for  damages  for  an  in- 
jury, or  to  quiet  title  or  to  determine  adverse  claims  thereto,  or  a 
judge  thereof,  may,  on  motion,  upon  notice  by  either  party,  for  good 
cause  shown,  grant  an  order  allowing  to  such  party  the  right  to  en- 
ter into  or  upon  the  property  or  mining  claim,  and  make  survey  or 
measurement  thereof,  or  of  any  tunnels,  shafts,  or  drifts  therein,  for 
the  purpose  of  the  action,  even  though  entry  for  such  purpose  has  to 
be  made  through  other  lands  or  mining  claims  belonging  to  parties 
to  the  action. 

"Sec.  13 1 5.  The  order  must  describe  the  property,  and  a  copy 
thereof  must  be  served  on  the  owner  or  occupant ;  and  thereupon 
such  party  may  enter  the  property,  with  necessary  surveyors  and  as- 
sistants, and  make  such  survey  and  measurement ;  but  if  unneces- 
sary damage  be  done  to  the  property,  he  is  liable  therefor."     =i=     =;=     * 

We  refer  to  the  statute,  and  the  cases  in  which  the  rule  has  been 
applied,  to  show  that  the  district  court  had  ample  authority  to  make 
the  order  in  question,  provided  the  facts  presented  at  the  hearing 
justified  it.  Indeed,  the  order,  upon  proper  showing,  is  always  made 
almost  as  a  matter  of  course.  The  purpose  of  the  statute  is  to  serve 
the  interest  of  justice,  however,  and  not  to  be  made  an  instrument 
of  injustice  or  oppression.  Under  it  the  court  may  not,  without  a 
reasonable  showing,  and  in  disregard  of  the  rights  of  the  party  in 
possession  of  the  property,  or  in  control  of  the  means  of  access  to  it, 
permit  his  adversary  to  enter  upon  it,  merely  because  he  desires  and 
asks  for  an  order  permitting  him  to  do  so.  The  law  must  be  admin- 
istered in  the  spirit  of  liberality  to  accomplish  the  desired  end. 
Purely  technical  and  captious  objections  should  not  be  tolerated. 
The  language  of  the  statute  is,  "for  good  cause  shown,"  and,  under 
the  rule  laid  down  in  St.  Louis  Min.  &  Mill.  Co.  v.  Montana  Co., 


EXTRALATERAL    RIGHTS    UNDER    ACT    18/2.  475 

supra,  whenever  the  order  is  made  without  good  cause,  it  must  fol- 
low that  it  is  an  infringement  on  the  rights  of  the  party  in  posses- 
sion, and  may  be  set  aside  as  unauthorized ;  otherwise,  the  power  of 
the  court  could  be  exercised  without  restraint,  and  to  the  great  in- 
jury and  oppression  of  the  party  in  possession. 

With  these  preliminary  observations  we  proceed  to  determine, 
from  a  consideration  of  the  facts  presented  to  the  district  court, 
whether  the  order  complained  of  was  justified.  O'Connor  does  not 
assert  title  to  any  other  surface  within  the  boundaries  of  the  Copper 
Trust  claim  than  the  two  triangles  already  mentioned.  It  is  not  con- 
troverted in  this  proceeding  that  the  relators  are  entitled,  under  their 
patent,  to  so  much  of  the  vein  found  within  the  surface  of  the  trian- 
gle A,  B,  as  passes  on  its  strike  through  the  Smoke  Stack,  the  St. 
Lawrence,  and  the  Anaconda  claims,  and  that  in  following  this  vein 
on  its  strike  to  the  southwest  O'Connor  cannot  pass  beyond  the  east 
end  line  of  the  Smoke  Stack.  Indeed,  this  is  apparent  from  an  in- 
spection of  the  plat.  The  parallelism  of  the  end  lines  of  the  Smoke 
Stack  and  St.  Lawrence  also  gives  to  the  relators  the  right  to  follow 
the  vein  to  the  south  on  its  dip  beyond  the  vertical  planes  of  the  side 
lines  of  these  claims.  Under  the  Smoke  Stack  claim  the  extralateral 
rights  are  bounded  by  the  vertical  plane  of  the  east  end  line  of  the 
Smoke  Stack  and  St.  Lawrence  and  a  parallel  vertical  plane  passing 
through  the  point  at  which  the  vein  crosses  the  south  line  of  the 
Smoke  Stack  into  the  St.  Lawrence.  The  extralateral  rights  of  the 
St.  Lawrence  are  bounded  by  the  vertical  plane  last  mentioned  and 
a  vertical  plane  passing  downward  through  the  west  end  line  of  this 
claim,  for  it  appears  from  an  inspection  of  the  plat  that  the  area  of 
the  surface  conflict  between  the  Anaconda  and  the  St.  Lawrence  be- 
longs to  the  St.  Lawrence  claim.  It  follows,  further,  as  a  necessary 
conclusion,  that,  so  far  as  O'Connor  has  any  right  to  follow  this  vein 
on  its  dip  from  that  portion  of  the  apex  found  within  the  boundaries 
of  the  ti;iangle  A,  B,  this  right  is  limited  towards  the  west  by  the 
vertical  plane  of  the  east  end  line  of  the  Smoke  Stack  and  of  the 
St.  Lawrence,  extended  in  its  own  direction.  The  situation  present- 
ed by  the  position  and  course  of  the  apex,  with  reference  to  the  lines 
of  these  claims  and  the  rights  dependent  thereon,  has  been  consid- 
ered and  determined  by  the  following  cases :  Fitzgerald  v.  Clark, 
17  Mont.  100,  42  Pac.  273,  30  L.  R.  A.  803,  52  Am.  St.  Rep.  665 ; 
Del  Monte  Min.  &  Mill.  Co.  v.  Last  Chance  Min.  &  Mill.  Co.,  171  U. 
S.  50,  18  Sup.  Ct.  895,  43  L.  Ed.  ^2;  Clark  v.  Fitzgerald,  171  U.  S. 
92,  18  Sup.  Ct.  941,  43  L.  Ed.  87;  and  Copper  Co.  v.  Heinze,  25 
Mont.  — ,  64  Pac.  326 ;  and  all  questions  arising  thereon  are  now 
too  well  settled  to  admit  of  further  discussion.  It  is  of  no  moment 
to  inquire  what  are  the  extralateral  rights  of  the  relators  through 
the  Anaconda  claim.  No  part  of  the  surface  of  that  claim  is  em- 
braced within  the  boundaries  of  the  Copper  Trust,  and  therefore  we 
shall  not  stop  to  consider  them,  except  to  remark  that,  whatever 


476  SUB-SURFACE    RIGHTS. 

rights  the  relators  have  to  follow  the  vein  on  its  dip  from  the  point 
where  the  apex  passes  into  that  claim,  they  cannot  extend  further 
east  than  the  vertical  plane  of  its  east  end  line.  Stated  succinctly, 
the  question  to  be  determined  is :  What  right,  if  any,  has  O'Connor, 
by  virtue  of  the  Copper  Trust  location,  to  assert  title  to  the  ores  ly- 
ing underneath  the  earth  within  the  triangle  the  apex  of  which  is 
at  G?  He  does  not  contend  that  he  has  any  right  to  follow  the  vein 
from  the  part  of  the  apex  within  the  triangle  A,  B,  through  the  in- 
tervening space,  about  1,300  feet,  either  on  or  beneath  the  surface 
of  the  St.  Lawrence.  As  we  have  already  stated,  his  claim  is  that, 
as  no  part  of  the  ore  bodies  in  controversy  is  situated  within  the 
surface  boundaries  of  the  St.  Lawrence  claim,  no  part  of  them  be- 
longs to  that  claim,  and,  as  the  relators  may  not  claim  this  portion 
of  the  vein  through  the  St.  Lawrence  or  the  Anaconda  by  means  of 
their  extralateral  rights,  they  were  not,  in  contemplation  of  the  min- 
ing laws,  appropriated  by  the  relators  through  any  of  their  locations, 
and  therefore  belong  to  O'Connor  by  appropriation  under  the  Cop- 
per Trust,  although  he  has  no  part  of  the  apex  by  which  he  may 
follow  the  vein  on  its  dip  from  the  surface.  In  support  of  his  con- 
tention, counsel  for  respondents  cite  the  Del  Monte  Case,  supra,  as 
decisive.  We  do  not  so  understand  it.  Among  other  questions  de- 
cided in  that  case  it  was  distinctly  held  that  any  of  the  lines  of  a 
junior  location  may  be  laid  within,  upon,  or  across  the  surface  of  a 
valid  senior  location  for  the  purpose  of  defining  for  or  securing  to 
such  junior  location  underground  or  extralateral  rights  not  in  con- 
flict with  any  rights  of  the  senior  location.  The  question  presented 
here  did  not  arise,  and  was  not  decided.  Referring  to  the  diagram 
used  to  illustrate  the  contentions  of  the  parties  and  the  different 
directions  of  the  lines  pointed  out  in  the  opinion,  it  appears  that  upon 
an  extension  of  the  vertical  plane  of  the  north  end  line  of  the  New 
York  claim  in  its  own  direction  a  triangular  portion  of  the  vein 
would  be  left  between  it  and  the  vertical  plane  of  the  line  bounding 
the  extralateral  rights  of  the  Last  Chance  to  the  south,  entirely  be- 
yond the  vertical  plane  of  the  surface  lines  of  any  of  the  conflicting 
claims.  The  court  says,  with  reference  to  the  title  to  this  portion  of 
the  vein  :  'Tn  other  words,  referring  to  the  first  diagram,  the  inquiry 
is  not  whether  the  owners  of  the  Last  Chance  have  a  right  to  pursue 
the  vein  as  it  descends  into  the  ground  south  of  the  dotted  line  r,  s, 
even  though  they  should  reach  a  point  in  the  descent  in  which  the 
rights  of  the  owners  of  the  New  York,  the  prior  location,  have 
ceased.  It  is  obvious  that  the  line  e,  h,  the  end  line  of  the  New  York 
claim,  extended  downward  into  the  earth,  will  at  a  certain  distance 
pass  to  the  south  of  the  line  r,  s,  and  a  triangle  of  the  vein  will  be 
formed  between  the  two  lines,  which  does  not  pass  to  the  owners  of 
the  New  York.  The  question  is  not  distinctly  presented  whether 
that  triangular  portion  of  the  vein  up  to  the  limits  of  the  south  end 
line  of  the  Last  Chance,  b,  c,  extended  vertically  into  the  earth,  be- 


EXTRALATERAL    RIGHTS    UNDER    ACT    l8'/2.  4/7 

longs  to  the  owners  of  the  Last  Chance  or  not,  and  therefore  we  do 
not  pass  upon  it.  Perhaps  the  rights  of  the  junior  locator  below  the 
surface  are  limited  to  the  length  of  the  vein  within  the  surface  of  the 
territory  patented  to  him,  but  it  is  unnecessary  now  to  consider  that 
matter.  All  that  comes  fairly  within  the  scope  of  the  question  be- 
fore us  is  the  right  of  the  owners  of  the  Last  Chance  to  pursue  the 
vein  as  it  dips  into  the  earth  westwardly  between  the  line  a,  d,  t,  and 
the  line  r,  s,  and  to  appropriate  so  much  of  it  as  is  not  held  by  the 
prior  location  of  the  New  York,  and  to  that  extent  only  is  the  ques- 
tion answered.  The  junior  locator  is  entitled  to  have  the  benefit  of 
making  a  location  with  parallel  end  lines.  The  extent  of  that  benefit 
is  for  further  consideration."  The  court  does  say,  as  defendants 
claim,  that  the  portion  of  the  vein  referred  to  does  not  pass  to  the 
owner  of  the  New  York.  Obviously,  this  is  a  correct  conclusion, 
for,  under  no  circumstances,  would  the  extralateral  rights  of  the 
New  York  extend  northward  beyond  the  vertical  plane  of  its  north 
end  line.  With  equal  distinctness  is  the  question-  of  the  rights  of  the 
Last  Chance  to  any  of  that  portion  of  the  vein  reserved.  Nowhere 
in  the  opinion  do  we  find  any  support  for  the  contention  that  the 
junior  locator  acquires  any  right  to  any  portion  of  a  vein  beneath 
the  surface  of  the  senior  location  by  laying  his  lines  upon,  over,  or 
across  its  surface,  except  that  by  this  means  he  may  secure  parallel- 
ism of  his  end  lines,  and,  through  this  parallelism,  extralateral  rights 
to  the  extent  of  the  length  of  the  vein  found  within  the  surface  for 
which  he  may  receive  patent.  We  doubt  seriously  whether  the  court 
intended  to  be  understood  as  declaring  it  to  be  the  law  that  a  junior 
locator  may  lay  his  lines,  in  part  or  wholly,  upon  and  over  the  sur- 
face of  claims  already  patented,  and  secure  any  rights  thereby. 
After  patent  has  issued,  the  legal  title  to  the  land  conveyed  by  it  has 
passed  wholly  from  the  government.  The  holder  of  this  title  is 
wholly  beyond  the  jurisdiction  of  the  land  department;  and  it  would 
seem  that  no  one  can  initiate  by  trespass  upon  his  tract  any  right 
whatever,  whether  it  be  committed  ignorantly  or  not.  It  does  not 
appear  distinctly  from  the  opinion  in  the  Del  Monte  Case  whether 
any  of  the  claims  were  patented  at  the  time  the  conflict  arose.  If 
the  law  is  as  counsel  contend,  then  a  patent  does  not  convey  an  abso- 
lute estate,  but  only  a  qualified  fee,  and  leaves  the  land  still  subject 
to  some  rights  in  the  government, — a  doctrine  for  which  there  seems 
to  be  no  warrant  in  the  statute.^-     So  long  as  land  is  not  patented, 

^°  This  statement  overlooks  the  case  where  after  a  patent  issues  the  apex  of 
a  vein  which  dips  through  the  patented  ground  is  so  located  as  to  give  the 
locator  that  dip.  The  proper  analogy  in  the  law  of  real  property  to  apply  in 
the  latter  case,  would  seem  to  be  that  of  powers  to  revoke  and  to  new-appoint. 
See  Costigan,  Mining  Law,  407.  Once  the  right  of  the  government  to  grant 
away  to  the  subsequent  locator  of  the  apex  the  dip  contained  in  the  patented 
ground  is  conceded,  the  further  proposition  that  such  subsequent  locator  of  the 
apex  may  make  sure  of  the  dip  by  laying  the  lines  of  his  location  over  part  of 


478  SUB-SURFACE    RIGHTS. 

the  legal  title  is  still  in  the  government ;  and  it  may  be  argued  with 
some  force  that,  while  held  under  a  location  merely,  it  is  still  within 
the  jurisdiction  of  the  land  department,  and  for  that  reason  it  is 
within  the  province  of  its  authority  to  say  that  a  junior  locator  may 
lawfully  go  upon  it,  and  mark  his  boundaries  and  erect  his  monu- 
ments upon  its  surface,  in  order  to  initiate  rights  in  lands  not  cov- 
ered by  it.  This  seems  to  be  the  theory  upon  which  the  court  pro- 
ceeds in  the  Del  Monte  Case ;  for  the  argument  upon  which  its  con- 
clusion on  this  point  in  the  case  is  based  is  found  on  pages  73-85, 
171  U.  S.,  pages  902-907,  18  Sup.  Ct.,  and  pages  80-84,  43  L.  Ed., 
and  nowhere  therein  do  we  find  any  reason  stated  which  would  ap- 
ply with  any  force  to  locations  made  by  a  trespass  upon  the  surface 
of  lands  to  which  patent  had  already  been  issued. 

The  only  authority  called  to  our  attention  which  distinctly  sus- 
tains the  contention  of  counsel  as  to  the  validity  of  the  Copper  Trust 
location  is  the  decision  in  Re  Hidee  Gold-Min.  Co.,  rendered  by 
Secretary  Hitchcock  on  January  30,  1901.  In  this  decision  the  sec- 
retary distinctl}-  sustains  the  contention  of  counsel  for  the  defend- 
ants on  this  point.  We  quote  from  the  headnote  of  his  opinion : 
"The  location  lines  of  a  lode-mining  claim  are  used  only  to  describe, 
define,  and  limit  property  rights  in  the  claim,  and  may  be  laid  with- 
in, upon,  or  across  the  surface  of  patented  lode-mining  claims  for 
the  purpose  of  claiming  the  free  and  unappropriated  ground  within 
such  lines  and  the  veins  apexing  in  such  ground,  and  of  defining  and 
securing  extralateral  underground  rights  upon  all  such  veins,  where 
such  lines  (a)  are  established  openly  and  peaceably,  (b)  do  not  em- 
brace any  larger  area  of  surface,  claimed  and  unclaimed,  than  the 
law  permits."  Even  he  limits  the  validity  of  such  locations  to  cases 
where  the  lines  are  established  openly  and  peaceably.  We  do  not 
understand,  however,  how  the  United  States  government  may  con- 
vey any  right  to  lands  by  consent  of  an  adjoining  owner  under 
patent,  which  it  could  not  convey  without  such  consent.  As  we  have 
said,  we  have  grave  doubts  as  to  the  soundness  of  the  conclusion  of 
Secretary  Hitchcock.  But  conceding,  for  the  present  discus- 
sion, that  it  is  the  law,  there  is  nothing  in  the  Del  Monte 
Case  nor  in  the  opinion  of  the  secretary  to  support  the  con- 
tention of  counsel  that  O'Connor  acquired  by  his  location  of  the 
Copper  Trust  ownership  of  any  part  of  the  vein  in  question  which 
underlies  the  Rob  Roy  claim,  or  any  of  the  claims  to  the  south.    In 

an  already  patented  surface  would  seem  to  be  a  logical  consequence.  If  the 
government  has  reserved  the  right  to  revoke  and  new  appoint  as  to  the  dips  of 
veins  which  apex  outside  the  patented  land  and  has  established  the  procedure 
of  revoking  and  new  appointing  by  means  of  locations  authorized  by  it  and 
if  such  locations  to  be  effectual  for  the  purpose  must  have  parallel  end  lines, 
the  right  to  authorize  the  locator  to  enter  upon  patented  or  unpatented  land  to 
make  such  end  lines  parallel  exists  as  an  essential  part  of  the  right  to  revoke 
and  to  new  appoint. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  479 

the  Del  Monte  Case  the  extralateral  rights  claimed  by  the  Last 
Chance  were  asserted  as  to  that  portion  of  the  vein  the  apex  of  which 
was  found  within  that  part  of  the  surface  of  the  Last  Chance  not 
covered  by  any  previous  location.  The  case  goes  only  to  the  extent  of 
deciding  that,  as  the  last  chance  had  parallel  end  lines,  and  the  vein 
passed  through  them,  it  had  extralateral  rights  as  to  that  portion  of 
the  apex  not  covered  by  either  of  the  other  conflicting  locations.  The 
Hidee  Case  involved  only  the  validity  of  a  location  the  lines  of  which 
were  laid  upon,  over,  and  across  the  surface  of  the  claims  already 
patented,  so  as  to  secure  all  the  rights  appertaining  to  the  unappro- 
priated intervening  surface.  Certain  expressions  found  in  these  cases 
in  which  reference  is  made  to  underground  rights  would  seem  to 
lend  support  to  the  contention  of  counsel,  but,  when  they  are  con- 
sidered in  the  light  of  the  particular  rights  under  discussion,  they 
have  no  pertinency  to  the  question  presented  in  this  case.  The  same 
may  be  said  of  Mining  Co.  v.  Buck,  38  C.  C.  A.  278,  97  Fed.  462. 
Suppose,  for  instance,  there  had  been  no  vacant  surface  within  the 
boundaries  of  the  Copper  Trust  location,  would  it  be  contended  for 
a  moment  that  O'Connor  has  any  rights  whatever  under  it?  A  dis- 
covery of  a  vein  upon  unoccupied  land  is  absolutely  essential  to  the 
validity  of  a  location.  There  must  be  a  surface  right.  Without  this 
no  right  to  the  lode  can  be  established.  The  statutes  do  not  author- 
ize the  land  department  to  convey  a  lode  independently  of  the  surface 
ground  connected  with  and  containing  or  overlying  it.  This  is  the 
conclusion  stated  by  this  court  in  IMontana  Ore-Purchasing  Co.  v. 
Boston  &  M.  Consol.  Copper  &  Silver  Min.  Co.,  20  Mont.  337,  51 
Pac.  159,  in  a  case  in  which  the  plaintiff  claimed  under  a  patent 
which  attempted  to  convey  a  small  portion  of  surface  covered  by  the 
Rarus  location,  together  with  1,318  linear  feet  of  the  lode,  which  had 
its  apex  in,  and  underlay  the  surface  of,  the  Johnstown,  a  conflicting 
claim.  The  patent  was  held  to  be  unauthorized  and  void  as  to  the 
portion  of  the  ledge  not  underlying  the  surface  conveyed  by  it.  This 
court  said :  *Tt  is  no  doubt  true  that  those  statutes,  taken  as  a  whole, 
give  greater  prominence  verbally  to  the  lode  or  vein  than  to  the  sur- 
face connected  therewith ;  but  this  naturally  results  from  the  fact 
that  the  lode  is  the  main  subject  treated.  Such  expressions  and  such 
prominence,  however,  cannot  avail  to  permit  the  grant  of  lodes  or 
veins  embraced  in  a  located  quartz  claim,  regardless  of  the  surface 
connected  therewith."  The  same  view  is  stated  by  Mr.  Lindley  in 
his  work  on  Mines,  in  section  780.  It  is  only  by  virtue  of  an  apex 
found  within  the  surface  of  any  claim  having  parallel  end  lines  than 
an  owner  may  assert  the  right  to  enter  beneath  the  surface  of  his 
neighbor.  This  is  the  evident  meaning  of  section  2322  of  the  United 
States  Statutes.  Neither  this  section  nor  any  other  provisions  of 
the  statute  authorizes  or  provides  a  way  for  the  appropriation  of  any 
portion  of  a  lode  without  some  portion  of  the  surface  through  which 
it  may  be  reached.    Should  a  patent  issue  to  O'Connor,  under  the 


480  SUB-SURFACE    RIGHTS. 

Del  Monte  and  Hidee  Cases  it  would  issue  for  the  whole  surface 
within  the  Copper  Trust  boundaries,  excluding  all  those  portions 
covered  by  the  relators'  patents.  Under  tlie  principle  of  the  case  of 
Montana  Ore-Purchasing  Co.  v.  Boston  &  M.  Consol.  Copper  &  Sil- 
ver Min.  Co.,  supra,  and  as  stated  by  Mr.  Lindley,  this  would  ipso 
facto  exclude  the  ore  bodies  lying  within  the  disputed  triangle. 
Again,  the  title  to  a  mining  claim  carries  with  it  all  the  rights  inci- 
dent to  a  title  in  fee  at  the  common  law,  except  in  so  far  as  it  is  en- 
larged or  limited  by  the  statute.  This  court,  in  Copper  Co.  v.  Heinze, 
25  Mont.  139,  64  Pac,  at  page  329,  in  considering  such  rights, 
said :  "The  patent  grants  the  fee,  not  to  the  surface  and  ledge  only, 
but  to  the  land  containing  the  apex  of  the  ledge.  The  right  to  follow 
the  ledge  upon  its  dip  between  the  vertical  planes  of  the  parallel  end 
lines  extending  in  their  own  direction,  when  it  departs  beyond  the 
vertical  plans  of  the  side  lines,  is  an  expansion  of  the  rights  which 
would  be  conferred  by  a  common-law  grant.  On  the  other  hand,  this 
grant  is  subject  to  the  right  of  an  adjoining  locator  to  follow  his 
vein  upon  its  course  downward  beneath  the  surface  included  in  the 
grant.  In  these  two  respects  only  do  the  rights  conferred  by  the 
statute  differ  from  those  held  under  a  common-law  grant."  There- 
fore, viewed  merely  as  land  with  the  ordinary  incidents  of  owner- 
ship, the  owner  holds  everything  beneath  the  surface,  subject  only 
to  the  right  of  an  adjoining  locator  or  patentee,  who  has  the  apex 
of  a  vein,  and  who  has  complied  with  the  statute,  to  pursue  it  on  its 
dip  beneath  the  surface.  O'Connor  has  no  part  of  the  apex  of  the 
vein  so  situated  with  reference  to  the  ore  bodies  within  the  triangle 
that  he  may  pursue  the  vein  from  the  surface.  He  cannot  acquire 
any  portion  of  the  surface  belonging  to  the  relators.  Neither  can  he 
pass  through  the  St.  Lawrence  from  the  point  at  which  he  made  his 
discovery,  or  from  any  point  within  any  of  the  surface  owned  by 
him.  He  is  therefore  not  in  a  position,  by  virtue  of  his  location,  to 
maintain  his  claim  to  the  ores  in  controversy.  Under  the  principle 
of  Copper  Co.  v.  Heinze,  supra,  and  upon  the  undisputed  facts  pre- 
sented upon  this  application,  they  belong  prima  facie  to  the  relators, 
as  owners  of  the  Rob  Roy  claim,  and  others  to  the  south  by  virtue 
of  their  common-law  rights.  See  also,  Calhoun  Gold-Min.  Co.  v. 
Ajax  Gold-Min.  Co.  (decided  May  27,  1901)  181  U.  S.  885,  21  Sup. 
Ct.  885,  45  L.  Ed.  — .  It  thus  appears  that  the  order  of  the  district 
court,  based,  as  it  was,  upon  a  state  of  facts  showing  prima  facie 
that  O'Connor  has  and  can  have  no  interests  in  the  property  which 
he  seeks  to  inspect,  was  not  justified. ^^ 

This  brings  us  to  the  consideration  of  the  question,  what  remedy, 

"For  a  statement  of  the  "judicial  apex"  doctrine,  see  Costigan,  Mining 
Law,  434-436,  where  the  principal  case  is  disapproved.  In  an  article  on  "Lode 
Locations :  A  Specific  Question  of  Extralateral  Rights  and  a  General  Theory 
of  Intralimital  Rights,"  in  22  Haw.  Law  Rev.  266,  Mr.  Henry  Newton  Arnold 
approves  of  the  principal  case. 


EXTRALATERAL    RIGHTS    UNDER   ACT    18/2.  481 

if  any,  may  this  court  afford  ?  *  *  *  ^  ^j-j^  ^ju  therefore  issue, 
under  the  seal  of  this  court,  in  the  form  of  a  peremptory  order  di- 
recting the  district  court  and  its  judge  to  set  aside  the  order  made 
and  entered  on  May  20,  1901.  Nothing  we  have  said  in  this  opinion 
is  to  be  construed  as  a  final  adjudication  of  the  rights  of  the  parties 
in  the  case  of  O'Connor  against  the  relators.  What  we  have  said  is 
upon  the  undisputed  facts  as  they  appear  in  this  record.  Writ 
gfranted. 


WOODS  V.  HOLDEN  et  al. 
1898.  Department  of  the  Interior.  26  Land  Dec.  Dept.  Int.  198. 

Acting  Secretary  Ryan  to  the  Commissioner  of  the  General  Land 
Office: 

[After  explaining  that  in  an  adverse  suit  between  the  Mary 
Mabel  claim  and  the  Hartford  lode  the  conflict  area  was  awarded 
to  the  Mary  Mabel,  but  that  when  the  Mary  Mabel  applied  to  pur- 
chase that  area  it  was  claimed  that  the  Mt.  Rosa  patented  placer  in- 
tersected about  75  feet  of  the  assumed  lode  line  of  the  Mary  Mabel, 
dividing  the  lode  into  two  non-contiguous  parts,  and  that  in  conse- 
quence the  whole  could  not  be  patented  since  a  "lode  claim  inter- 
sected by  a  prior  placer  location  cannot  be  allowed  to  include  ground 
not  contiguous  to  that  containing  the  discovery,"  the  Actinp-  Secre- 
tary continued :] 

As  will  be  seen  by  the  accompanying  plat,  the  ground  in  conflict 
between  the  Mary  Mabel  and  the  Hartford  included  much  the  larger 
part  of  both  claims.  The  Mt.  Rosa  placer,  which  was  patented  April 
24,  1893,  nearly  a  year  before  the  Mary  JNIabel  was  located,  cut  in 
two  and  segregated  the  assumed  lode  line  of  the  latter. 

Much  evidence  was  taken  at  the  hearing  ordered  by  your  office, 
to  determine  whether  the  Mary  Mabel  vein  or  lode  is  intersected  by 
the  patented  placer.  The  local  officers  reached  different  conclusions 
upon  this  question;  the  register  holding  that  the  Mary  Mabel  vein 
or  lode  departs  from  its  assumed  course  and  passes  to  the  north  of 
the  placer,  and  the  receiver  holding  that  the  vein  or  lode  does  not 
depart  from  its  assumed  course,  and  that  it  is  intersected  by  the 
placer.  Your  office  adopted  the  conclusion  of  the  receiver,  and  it  is 
now  insisted  by  the  protestants  that  the  concurring  findings  of  the 
receiver  and  your  office  are  supported  by  a  preponderance  of  the 
evidence.  It  will  be  assumed  that  these  concurring  findings  are  right, 
and  that  the  course  of  the  vein  or  lode  at  its  actual  apex  is  inter- 
sected by  the  patented  placer  as  shown  upon  the  plat. 

If  this  intersection  of  the  Mary  Mabel  vein  or  lode  affected  the 
Hartford's  right  of  possession  to  any  part  of  the  ground  in  conflict 
that  claim  should  have  been  asserted  in  the  proceeding  and  in  the 

31 — Mining  Law 


482 


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EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  483 

tribunal  where  alone  tlie  right  to  possession  can  be  determined  in 
cases  of  conflicting  mining  locations. 

The  placer  does  not  extend  across  the  Mary  Mabel  location  so  as 
to  divide  it  into  two  disconnected  parts,  but  it  does  extend  across 
and  sever  the  actual  apex  of  the  lode.  The  Mary  Mabel  discovery  is 
to  the  west  of  the  placer,  and  the  protestants  urge  that  the  Mary 
Mabel  vein  is  divided  into  two  non-contiguous  parts,  that  the  loca- 
tion cannot  lawfully  include  any  part  of  the  vein  not  contiguous  to 
the  discovery,  and  that  the  right  of  the  Mary  Mabel  cannot  extend 
easterly  beyond  the  point  where  its  lode  mine  is  intersected  by  the 
westerly  line  of  the  placer. 

Section  2320,  Rev.  Stat.,  in  prescribing  the  extent  of  a  lode  loca- 
tion, says : 

A  mining  claim  *  *  *  may  equal  but  shall  not  exceed  one 
thousand  five  hundred  feet  in  length  along  the  vein  or  lode ;  but  no 
location  of  a  mining  claim  shall  be  made  until  the  discovery  of  the 
vein  or  lode  within  the  limits  of  the  claim  located.  No  claim  shall 
extend  more  than  three  hundred  feet  on  each  side  of  the  middle  of 
the  vein  at  the  surface,  nor  shall  any  claim  be  limited  by  any  mining 
regulation  to  less  than  twenty-five  feet  on  each  side  of  the  middle 
of  the  vein  at  the  surface.  *  *  *  The  end  lines  of  each  claim 
shall  be  parallel  to  each  other. 

Section  2322,  Rev.  Stat.,  defines  the  rights  under  a  lode  location 
as  follows : 

The  locators  of  all  mining  locations  *  *  *  shall  have  the  ex- 
clusive right  of  possession  and  enjoyment  of  all  the  surface  included 
within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside 
of  such  surface  lines  extended  downward  vertically,  although  such 
veins,  'lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in 
their  course  downward  as  to  extend  outside  the  vertical  side  lines 
of  such  surface  locations. 

The  undisputed  evidence  shows  that  the  Mary  Mabel  vein  dips 
to  the  north,  that  only  the  apex  and  a  small  portion  of  the  vein  upon 
its  dip  is  located  within  the  placer  and  that  in  dipping  to  the  north 
the  vein  passes  into  that  portion  of  the  Mary  Mabel  location  lying 
between  the  northerly  side  line  thereof  and  the  placer.  Along  its 
course  from  west  to  east  the  vein  has  an  actual  existence  within  the 
Mary  Mabel  from  one  end  line  to  the  other,  so  that  the  location  of 
that  claim  does  not  involve  or  present  a  violation  of  the  statutory 
requirement  that  a  lode  mining  claim  shall  be  located  "along  the 
vein."  The  vein,  after  dipping  out  of  the  Mt.  Rosa  placer,  is  either 
lawfully  included  in  the  Mary  Mabel  claim,  or  a  valid  location 
thereof  cannot  be  made.  This  latter  part  of  this  alternative  proposi- 
tion cannot  be  recognized  because  it  has  no  support  in  any  statute 
and  is  inconsistent  with  the  express  provision  of  section  2319,  Rev. 
Stat.,  which  declares : 


484  SUB-SURFACE    RIGHTS. 

All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be 
free  and  open  to  exploration  and  purchase,  and  the  lands  in  which 
they  are  found  to  occupation  and  purchase. 

There  is  no  claim  that  the  existence  of  this  lode  was  known  at  the 
time  of  the  Mt.  Rosa  placer  entry  or  patent,  and  therefore  the  por- 
tion thereof  within  the  placer  passed  to  the  placer  claimants  under 
the  provision  of  section  2333,  which  reads :  "But  where  the  exist- 
ence of  the  vein  or  lode  in  a  placer  claim  is  not  known,  a  patent 
for  the  placer  claim  shall  convey  all  valuable  mineral  and  other  de- 
posits within  the  boundaries  thereof." 

It  has  been  indisputably  settled,  and  is  admitted  by  protestants, 
that  a  placer  claimant  cannot  follow  a  vein  or  lode  beyond  the  surface 
boundaries  of  his  claim  extended  vertically  downward.  The  portion 
of  this  vein  lying  outside  of  the  placer  is  "in  lands  belonging  to 
the  United  States,"  and  under  section  2319  is  "free  and  open  to  ex- 
ploration and  purchase."  While  the  actual  apex  of  the  vein  is  within 
the  placer,  the  United  States  has  dealt  with  and  disposed  of  the 
placer  claim  as  non-lode  ground,  and  for  all  purposes  of  disposition 
by  the  United  States  under  future  exploration  and  discovery  any 
vein  or  lode  in  adjacent  ground  stops  at  the  point  of  its  intersection 
with  the  boundary  of  the  placer.  Within  the  placer  it  is  not  subject 
to  exploration  or  purchase,  except  according  to  the  will  of  the  pri- 
vate owner.  For  the  purposes  of  discovery  and  purchase  under  the 
mining  laws,  the  legal  apex  of  a  vein  like  the  Mary  Mabel,  dipping 
out  of  the  ground  disposed  of  under  the  placer  or  non-mineral  laws, 
is  that  portion  of  the  vein  within  the  public  lands  which  would  con- 
stitute its  actual  apex  if  the  vein  had  no  actual  existence  in  the 
ground  so  disposed  of.  Under  this  view  the  apex  of  the  vein  extends 
throughout  the  entire  length  of  the  Mary  Mabel  claim,  if  that  be 
necessary  to  the  valid  entry  thereof.  Protestant's  contention  that  the 
Mary  Mabel  vein  or  lode  is  segregated  and  divided  into  two  non- 
contiguous parts  by  the  Mt.  Rosa  placer  and  that  the  location  and 
entry  of  the  easterly  part  is  thereby  rendered  invalid  cannot  be 
sustained. 

The  Mt.  Rosa  being  patented  ground  constituted  no  part  of  the 
Mary  Mabel  location  and  was  excluded  from  the  entry  thereof,  so 
that  the  westerly  and  northerly  lines  of  the  placer,  where  they  come 
in  contact  with  the  Mary  Mabel,  became  a  part  of  the  southerly 
side  line  thereof.  Under  this  adjustment  the  two  side  lines  are  not 
parallel,  but  it  is  not  necessary  that  they  should  be.  The  provision 
upon  that  subject  is  by  its  own  terms  confined  to  end  lines.  No  por- 
tion of  either  side  line  as  thus  constituted  is  more  than  150  feet 
from  the  middle  of  the  vein,  and  protestant's  assertion  of  an  infrac- 
tion of  the  Colorado  statute  limiting  the  width  of  lode  claims  to  150 
feet  on  each  side  is  not  supported  by  the  record. 

Your  office  decision  herein  is  reversed  and — 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  485 

(i)  The  Mary  Mabel  entry  is  hereby  sustained  except  as  to  the 
areas  in  conflict  with  the  Sierra  Nevada  and  the  Little  Montana. 

(2)  The  entry  of  the  area  in  conflict  with  the  Sierra  Nevada  is 
hereby  canceled,  subject  to  the  right  of  the  Mary  Mabel  to  enter  that 
area,  without  giving  further  notice,  should  the  controversy  be  adjudi- 
cated by  a  court  of  competent  jurisdiction  in  favor  of  the  Mary 
Mabel  or  the  adverse  claim  of  the  Sierra  Nevada  be  waived,  but  un- 
less proceedings  to  accomplish  such  adjudication  are  prosecuted  with 
reasonable  diligence  the  right  to  make  entry  of  this  area  will  be  lost. 

(3)  The  entry  of  the  portion  of  the  area  in  conflict  with  the  Little 
Montana  is  hereby  canceled  subject  to  the  right  of  the  Mary  Mabel, 
within  a  reasonable  time,  to  complete  its  application  for  patent  to  this 
area  by  giving  notices  thereof  and  otherwise  complying  with  the  law, 
and  mining  regulations,  and, 

(4)  If,  by  reason  of  the  cancellation  hereby  made  there  remains 
in  the  Mary  Mabel  entry  any  non-contiguous  area  in  the  easterly 
portion  thereof,  your  office  will  make  such  cancellation  or  disposition 
of  such  non-contiguous  ground  as  may  be  proper.  This  direction  is 
made  necessary  because  there  is  in  the  record  no  plat  showing  the 
Sierra  Nevada  conflict.^* 


WATERLOO  MIN.  CO.  v.  DOE  et  al. 
1897.     Circuit  Court  of  Appeals.     27  C.  C.  A.  50,  82  Fed.  45. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  California. 

Before  Gilbert,  Circuit  Judge,  and  Knowles  and  Bellinger, 
District  Judges. 

Knowles,  District  Judge.^^ — This  is  an  action  brought  by  John 
S.  Doe  to  restrain  and  enjoin  the  appellant  from  committing  a  con- 
tinuing trespass  upon  two  mining  claims,  known  as  the  "Oriental 
No.  2"  and  the  "Red  Cloud,"  situate  in  Calico  mining  district,  San 
Bernardino  county,  Cal.  John  S.  Doe  died,  and  the  appellees,  Bart- 
lett  Doe  and  Charles  F.  Doe,  were  appointed  executors  of  his  last 
will  and  testament,  and  were  substituted  as  parties  plaintiff  in  the 
place  of  the  said  John  S.  Doe.  The  appellant,  the  Waterloo  Mining 
Company,  owns  the  Silver  King  mining  claim.  This  lies  north  of 
and  adjoining  the  said  Oriental  No.  2  and  Red  Cloud  claims.  The 
appellant  sunk  a  shaft  or  incline  upon  its  own  surface  ground  within 
the  lines  of  its  claim,  and  from  thence  drifted  into  the  ground  claimed 
by   appellees,    and    which    ground    is   beneath    the    surface   of   that 

"  See  Iron  Silver  Min.  Co.  v.  Murphy,  3  Fed.  368,  Zld,  quoted  in  note  to 
Van  Zandt  v.  Argentine  M.  Co.  ante.  On  the  "theoretical  apex"  doctrine,  see 
Costigan,  Mining  Law,  450. 

^''  Parts  of  the  opinion  are  omitted. 


486  SUB-SURFACE    RIGHTS. 

which  is  within  the  Hne  of  appellees'  claims.  This  the  appellant 
claims  the  right  to  do,  and  threatens  and  undoubtedly  intends  to 
continue  to  do,  and  to  extract  the  ore  therein  and  appropriate  the 
same  to  its  own  use.  There  is  a  vein  of  spar,  carrying  silver  and 
other  minerals,  in  the  Silver  King  lode  claim,  called  the  "north 
vein,"  and  another  sometimes  called  a  "divergent  vein,"  and  at  other 
times  the  "middle  vein."  There  is  a  vein  of  spar,  also  carrying  sil- 
ver, which  crops  out  on  the  Red  Cloud  and  Oriental  No.  2,  and  which 
in  the  evidence  is  termed  the  "south  vein."  Appellant  claims  that 
all  these  veins  belong  to  a  mineralized  zone  whose  apex  is  in  the 
Silver  King  ground.  The  Silver  King  is  higher  up  the  mountain 
than  the  Red  Cloud  and  Oriental  No.  2  claims,  and  hence  upon  a 
higher  elevation  than  the  other  two.  If  the  ground  embracing  these 
three  veins  is  one  mineral  zone,  then  the  part  thereof  within  the  Sil- 
ver King  premises  would  have  the  higher  elevation.  This  zone 
would,  however,  be  cut  by  the  south  side  line  of  the  Silver  King  and 
the  north  side  lines  of  the  Red  Cloud  and  Oriental  No.  2.  Appel- 
lant received  pending  this  suit  a  patent  from  the  United  States  to 
the  Silver  King  lode.  The  appellees  have  certificates  of  sale  from 
the  United  States  for  their  two  claims.    *    *    * 

Counsel  for  appellees  urge  that  whatever  the  court  might  find  as 
to  the  south  vein  being  a  part  of  a  mineralized  zone  having  its  apex 
in  the  Silver  King  lode,  the  premises  of  appellant,  still  appellant 
would  have  no  right  to  follow  such  lode  on  its  downward  course  out- 
side the  side  lines  of  said  Silver  King  lode,  because  the  location  of 
the  same  was  not  made  according  to  law,  in  this :  that  its  end  lines 
were  not  located  parallel  with  each  other.  It  has  been  observed  that 
the  appellant  has  a  patent  from  the  United  States  for  its  said  lode. 
Its  rights  must  be  determined  by  the  terms  of  this  patent.  The  de- 
scription in  the  patent  of  the  Silver  King  lode  gives  it  parallel  end 
lines,  and  grants  the  right  to  follow  all  lodes  on  their  dip  outside  of 
the  side  lines  of  the  same,  whose  apex  is  within  the  surface  lines  of 
the  claim,  and  whose  strike  is  cut  by  the  end  lines  of  the  claim  ex- 
tended perpendicularly  downward.     *     *     * 

The  presumptions  are  in  favor  of  the  correctness  of  the  land  de- 
partment in  issuing  this  patent.  Its  action  was  within  its  jurisdic- 
tion, and  we  cannot  go  behind  the  same  in  a  collateral  action.  Look- 
ing, then,  at  the  patent,  we  observe  that  appellant  was  granted  ex- 
tralateral  rights.  If,  then,  appellant,  in  entering  the  premises  em- 
braced within  the  lines  of  appellees'  claim,  beneath  the  surface,  fol- 
lowed down  on  its  dip  a  lode  whose  apex  was  within  its  ground,  and 
whose  strike  was  cut  by  the  end  lines  of  its  claim  as  patented,  it  was 
pursuing  a  course  to  which  it  had  a  legal  right.     *     *     * 

The  main  issue,  upon  the  evidence,  is  as  to  whether  what  is  called 
by  the  witnesses  the  "south  vein"  is  a  part  of  a  mineralized  zone, 
which  may  be  denominated  a  "lode,"  and  which  has  its  apex  in  the 
Silver  King  ground,  or  is  a  separate  vein  or  lode,  having  is  apex  in 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  487 

the  Oriental  No.  2  and  Red  Cloud  mining  claims.  If  it  should  be 
determined  that  this  south  vein  is  no  part  of  a  lode  having  its  apex 
in  said  Silver  King  claim,  then  the  difficult  question  that  may  be 
presented  if  the  court  should  find  otherwise  is  not  involved.  This 
question  is  as  to  what  would  be  the  rights  of  the  parties  if  it  was 
found  that  the  south  and  north  veins  were  part  of  one  lode,  as  the 
said  lode  would  be  cut  by  the  south  side  line  of  the  Silver  King  lode 
and  the  north  side  line  of  the  Oriental  No.  2  and  the  Red  Cloud 
claims.     *     *     * 

We  hold,  therefore,  that  what  has  been  termed  the  "south  vein" 
is  no  part  of  the  Silver  King  lode,  but  a  separate  and  distinct  lode, 
meeting  the  usual  definition  of  a  "lode"'  or  "vein" ;  that  is,  an  aggre- 
gation of  mineral  matter  containing  ores  in  fissures  of  rocks.  So 
far  as  this  vein  lies  within  the  boundaries  of  Oriental  No.  2  and  the 
Red  Cloud  mining  claims,  it  belonged  to  the  appellees  (the  plaintiffs 
in  the  court  below),  and  the  appellant  had  no  right  to  enter  upon  the 
same. 

The  appellant  presents  another  question  for  consideration.  It  is 
claimed  that,  admitting  that  the  south  vein  is  no  part  of  the  Silver 
King  lode,  still  appellant  should  not  be  enjoined  from  entering  upon 
the  same,  for  the  reason,  as  it  is  urged,  that  the  end  lines  of  the 
Silver  King  cut  this  vein.  It  would  appear  from  the  evidence  that 
this  south  vein  on  its  eastern  strike  does  enter  the  Silver  King 
ground,  and  passes  out  of  its  east  end  line.  The  apex  of  this  vein  is 
not  shown  to  be  in  the  ground  at  this  point,  but  it  is  a  fair  presump- 
tion that  it  is,  from  its  course  and  dip.  The  said  vein,  on  its  west- 
erly strike  beneath  the  surface,  until  it  passes  the  westerly  end  line 
of  the  Silver  King  claim,  is  within  the  Oriental  No.  2  and  Red  Cloud 
claims.  The  cropping  of  the  apex  of  this  vein,  however,  on  the  Red 
Cloud  premises,  has  a  course  towards  the  south  side  of  the  Silver 
King  lode.  In  fact,  there  are  some  croppings  cut  by  this  south  side 
line  that  are  supposed  to  belong  to  this  vein.  This  is  not,  however, 
fully  established.  The  evidence  is  not  sufficient  to  show  that  the 
apex  of  this  vein  is  found  anywhere  within  the  Silver  King  premises 
opposite  to  the  Red  Cloud  lode.  The  burden  of  proving  this  was 
upon  the  appellant,  as  the  vein  in  this  localit}^  beneath  the  surface 
of  the  Silver  King  is  nowhere  found.  If  the  vein  in  its  course  from 
east  to  west  should  be  found,  along  on  its  apex,  to  pass  out  of  the 
Silver  King  lode  and  into  the  Oriental  No.  2  ground,  from  this  into 
the  Red  Cloud  ground,  and  then  back  again  into  the  Silver  King 
premises,  and  westerly  out  of  its  west  end  line,  there  certainly  could 
be  no  right  in  appellant  to  any  part  of  the  vein,  the  apex  of  which 
was  not  in  the  Silver  King  premises.  The  grant  is  to  lodes  having 
their  apex  in  the  ground  patented.  The  fact  that  a  part  of  the  apex 
might  be  in  the  ground  granted  would  not  give  any  right  to  that  part 
of  the  apex  which  is  not  therein,  although  the  apex  might  be  cut 
by  both  end  lines  of  the  granted  premises.    There  is  no  case  that 


488  SUB-SURFACE    RIGHTS. 

supports  this  doctrine.  *  *  *  The  only  question  that  could 
arise,  if  the  facts  were  as  appellant  claims,  is  whether  it  could  follow 
down  on  the  lode  from  that  part  of  the  apex  thereof  in  its  premises 
into  the  premises  of  appellees.  This  is  a  disputed  question  in  mining 
litigation.  As  I  have  stated,  however,  the  evidence  does  not  warrant 
the  court  in  saying  that  there  is  any  part  of  the  apex  of  the  south 
vein  in  the  Silver  King  premises  opposite  the  Red  Cloud  claim.  As 
to  what  would  be  the  right  of  appellant  in  the  Oriental  No.  2  prem- 
ises, if  the  south  vein,  after  it  passes  on  its  strike  into  the  Silver 
King  ground,  on  its  dip  entered  the  Oriental  claim,  we  do  not  de- 
cide. The  case  is  not  argued  and  presented  to  us  upon  that  state  of 
facts.  It  does  not  appear  that,  from  the  point  where  the  apex  of  the 
south  vein  going  east  may  cross  the  south  side  line  of  the  Silver 
King  claim,  the  appellant  has  entered  the  Oriental  No.  2  premises 
on  the  dip  of  the  same.  We  have  nothing  presented,  then,  upon 
which  to  base  a  decision.  The  decree  of  the  court  below  is  therefore 
affirmed. 


CARSON  CITY  GOLD  &  SILVER  MIN.  CO.  v.  NORTH  STAR 

MIN.  CO. 

1896.     Circuit  Court,  N.  D.  California.     73  Fed.  597. 

Beatty,  District  Judge. ^^ — This  is  an  action  of  trespass  brought 
by  the  plaintiff,  as  owner  of  the  Irish-American  mining  claim,  situ- 
ated in  Nevada  county,  Cal.,  against  the  defendant,  which,  as  owner 
of  the  North  Star  claim,  has  followed  and  worked  its  ledge,  upon  its 
descent,  under  the  surface  of  the  former  claim.  Each  claim  is  a 
consolidation  of  a  number  of  small  claims,  many,  if  not  all,  of  which 
were  located  long  prior  to  the  enactment  of  any  mining  law  by  con- 
gress, and  is  patented  in  the  irregular  shape  and  of  the  unusual  size 
represented  upon  the  following  plat ;  the  Irish-American  being  about 
1,500  feet  square,  with  a  strip  extending  from  the  main  body  about 
600  feet  east,  and  the  North  Star,  lying  300  to  400  feet  south,  is 
about  3,100  feet  along  from  east  to  west  and  650  to  1,250  wide.  The 
plaintiff's  theory  is  that  the  apex  of  the  North  Star  ledge  runs  so 
near  northwesterly  and  southeasterly  that,  if  continued  in  its  course, 
it  would  cross  the  side  lines,  i,  2,  and  3,  4,  of  the  claim;  but  that 
the  ledge,  in  its  northwesterly  course,  before  reaching  the  north  side 
line,  is  interrupted  by  a  nearly  perpendicular  north  and  south  fissure, 
or,  at  least,  a  distinct  line  of  change  in  the  geological  formation  of 
the  country,  called,  in  this  case,  a  "crossing,"  to  the  west  of  which 
the  ledge  does  not  appear  either  upon  the  surface  or  in  the  under- 
ground workings.    The  defendant  claims  that  the  apex  of  its  ledge 

"  Parts  of  the  opinion  are  omitted. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872. 


489 


runs  in  an  easterly  and  westerly  direction  from  end  to  end,  and 
along  the  center  of  its  North  Star  claim,  and  that  its  dip  is  north- 
erly, or  practically  in  the  direction  of  its  main  working  shaft,  and, 
while  admitting  the  existence  of  the  crossing,  affirms  that  the  ledge 
continues  to  the  west  of  it.  The  surface  of  the  claim  is  so  cov- 
ered with  soil,  and  any  outcroppings  of  a  ledge  that  ever  may  have 


existed  are  so  obliterated  by  past  mining  operations,  that  very  little 
can  now  be  determined,  by  surface  indications,  of  the  course  of  the 
ledge.  Perplexity  is  added  from  the  fact  that,  over  much  of  the 
surface,  there  are  many  old  mining  shafts  and  workings,  in  which 
more  or  less  ore  has  been  found,  and  which  are  in  such  relative  posi- 
tions that  they  are  no  guide  to  the  location  of  the  course  of  any 
ledge.  A  portion  of  them  are  represented  on  the  plat  by  dots  and 
crosses. 

I.    During   the   trial   plaintifif   objected   to   defendant's    evidence, 


490 


SUB-SURFACE    RIGHTS. 


based  upon  the  North  Star  claim  as  patented,  and  insisted  that  the 
claims  of  which  it  is  composed  should  be  shown  as  originally  located, 
and  that  the  rights  of  the  parties  should  be  governed  by  the  located 
lines  of  those  claims,  and  not  by  the  patented  lines  of  the  North  Star. 
This  objection  was  overruled,  and  as,  upon  final  argument,  plaintiff 
insisted  upon  its  objection,  a  brief  consideration  of  it  will  precede 
any  discussion  of  the  other  issues.  In  this  objection  are  involved  the 
questions  of  the  parallelism,  and  of  the  intersection  by  the  ledge, 
of  the  end  lines  of  the  original  locations.  When  those  locations  were 
made,  there  was  no  law  requiring  such  parallelism,  but,  independent 
of  all  lines,  the  right  to  follow  the  ledge  along  its  course  for  the  full 
distance  claimed,  and  underground  upon  its  true  dip,  to  any  depth, 
was  undisputed.  Although  section  9  of  the  act  of  1872,  in  repealing 
certain  parts  of  the  old  law,  provided  that  "such  repeal  shall  not 
affect  existing  rights.''  the  courts  have  held  that,  when  any  claim 
is  patented,  those  rights  are  controlled  by  the  patented  lines.  *  *  * 
Without  now  defining  what  questions  are  settled  by  the  issuance 
of  a  patent,  it  is  held  that  the  question  of  the  defendant's  right  to  a 
patent  to  the  North  Star,  with  the  boundaries  as  defined  by_  it,  was 
within  the  jurisdiction  of  the  department,  and  was  determined  by 
it,  from  which  it  is  held  to  follow  that  the  boundary  lines,  as  defined 
by  the  patent,  are  the  only  lines  by  which  the  rights  of  the  parties 
can  be  determined.  To  adjudge  such  rights  by  the  original  lines  of 
the  several  claims  of  which  the  North  Star  is  composed  would  be 
such  an  assault  upon  the  patent  as  cannot  be  sustained.  The  former 
ruling  upon  plaintiff's  objection  is  therefore  adhered  to. 

2.  Without  making  special  reference  to  the  testimony  of  the  sev- 
eral witnesses  as  to  the  location  and  course  of  the  apex,  it  may  be 
concluded,  as  clearly  established,  that  a  ledge  had  been  found  in 
a  number  of  the  group  of  old  shafts  existing  near  the  south  side  line 
of  the  North  Star.  Upon  one  of  the  plaintiff's  maps  is  indicated  a 
line  of  shafts  running  east  and  west,  which  is  marked  "Shafts  on 
Apex."  Plaintiff's  witness  Hugunin  was  on  the  ground  the  day  this 
ledge  was  discovered,  in  1851,  and  located  a  claim  running  west 
from  the  main  shaft,  and  he  fixed  a  point,  designated  "B"  on  the  plat, 
being  over  100  feet  westerly  from  the  mouth  of  the  main  shaft,  as 
within  his  claim,  and  as  the  most  westerly  cropping  of  the  ledge. 
He  also  located  the  apex  of  the  ledge  50  feet  south  from  the  mouth 
of  the  Larimer  shaft,  and  40  to  50  feet  south  of  the  old  powder 
house,  which  was  on  a  direct  line  connecting  the  mouths  of  the  main 
and  Larimer  shafts.  An  apex  running  through  these  three  points 
fixed  by  this  witness,  and  continued  in  its  own  direction  each  way, 
would  cross  the  south  side  and  west  end  line  of  the  North  Star,  and 
the  same  result  would  follow  to  pass  a  line  through  these  points  and 
the  group  of  shafts.  I  do  not  think  that,  from  a  fair  consideration  of 
all  t?ie  plaintiff's  evidence,  it  can  be  concluded  that  the  course  of  the 
ledge  is  across  both  the  side  lines.   On  the  contrary,  defendant's  wit- 


EXTRALATERAL    RIGHTS    UNDER    ACT    l8/2.  491 

nesses  locate  the  apex  easterly  and  westerly  near  the  center  line 
of  the  claim  as  indicated  upon  the  plat,  and  the  witness  Morse  lo- 
cated croppings  at  the  point  designated  "C,"  being  about  300  feet 
west  from  the  mouth  of  the  main  shaft,  and  he  says  that  he  and  his 
associates  located  10  claims,  running  west  from  the  Auburn  road, 
"as  near  as  we  could  tell,  on  the  line  of  the  ledge."  Defendant's 
witnesses  are  corroborated  by  other  established  facts:  (a)  Before 
the  surface  was  disturbed,  and  when  indications  of  the  ledge  were 
clearer, .  the  original  locations  were  made  upon  an  east  and  west 
line,  and  about  along  the  central  line  of  the  North  Star,  (b)  The 
workings  of  a  mine,  made  in  mining  operations,  and  not  in  support 
of  litigation,  are  generally  important  as  evidence  of  any  facts  which 
may  be  legitimately  inferred  from  them.  The  three  incline  working 
shafts  were  started  upon  this  North  Star  central  line,  and  are  all 
shown  to  follow  the  ledge  in  their  descent.  It  is  reasonable  to  pre- 
sume they  were  started  upon  or  near  the  apex  of  the  ledge,  (c)  The 
working  levels  in  this  case  are  not  so  conclusive  as  usual  of  the 
course  of  the  ledge  for  the  reason  that  there  are  large  "horses"  in 
the  mine,  to  the  upper  and  lower  surface  of  which  the  workings  have 
conformed,  which  largely  accounts  for  the  varying  directions  the 
levels  have  taken. 

A  majority,  or  many,  of  the  upper  levels  are  nearly  parallel  with 
the  north  side  line,  while  others,  if  prolonged,  would  cut  the  west 
end  and  south  side  lines,  and  still  others  would  cross  both  side  lines, 
and  especially  those  in  the  deeper  workings.  But,  as  ledges  may,  in 
their  depths,  change  their  course,  and  as  the  surface  course  or  the 
course  of  the  apex  is  to  govern  the  miners'  rights,  the  workings  near- 
est the  surface  are  better  guides  to  the  course  of  the  apex  than  those 
far  below. 

Plaintiff  admits  that  there  is  a  mineral  vein  along  the  line  claimed 
by  defeYidant  as  the  apex,  but  says  it  is  but  a  spur  or  seam  from  the 
ledge,  which  runs  elsewhere ;  its  exact  locality  not  being  fixed.  That 
this  is  but  a  spur  or  seam  of  a  ledge,  and  so  unimportant  that  it  can- 
not be  made  the  basis  of  a  mineral  location,  cannot  be  reasonably 
concluded,  when  it  is  remembered  that  the  first  locations  were  made 
upon  and  along  it.  Moreover,  the  law  fixes  no  limit  to  the  size  or 
prominence  of  a  mineral-bearing  vein  before  a  mining  location  can 
be  made  upon  it.  While,  in  the  group  of  shafts  referred  to,  a  ledge 
was  found,  its  apex,  or  the  course  of  the  apex,  has  not  been  located, 
unless  it  be  by  the  plaintiff's  testimony  concerning  the  "shafts  on 
apex"  before  named ;  and  it  has  not  been  shown  that  any  vein 
crosses,  or  is  found  beyond,  the  south  side  line.  It  is  not  impossible 
that  the  apex  of  whatever  vein  exists  at  this  place,  if  traced  out, 
would  assume  a  course  somewhat  corresponding  to  the  outline  of 
the  group  of  shafts,  and  running  in  a  northeasterly  and  a  northwest- 
erly direction  until  it  unites  with  the  other  line  of  apex,  and  that  the 
two  outcrops  or  ledges  are  but  parts  of  one  vein,  which  are  separated 


492  SUB-SURFACE    RIGHTS. 

by  a  large  "horse,"  which  defendant's  evidence  and  diagrams  show 
exists  near  the  surface  of  the  mine.  There  is  some  evidence,  at  least, 
to  show  that  two  veins  do  unite  in  the  workings  not  far  below  the 
surface. 

From  a  full  consideration  of  all  the  evidence  it  is  concluded  that 
the  first  mining  locations  were  located  along  the  central  line  of  the 
North  Star  claim ;  that  such  line  is  practically  the  line  of  the  apex 
of  the  ledge  in  controversy ;  that  it  has  been  fixed  at  different  points 
along  the  irregular  lines  indicated  upon  the  plat  between  the  letters 
"C"  and  "D"  and  running  in  a  direction  south  about  80  degrees  east. 

3.  Generally,  when  a  ledge  has  been  traced  for  such  a  distance,  in 
a  claim  of  this  size,  it  would  not  be  an  unreasonable  presumption 
that  it  would  continue  in  the  same  direction  far  enough  to  cross  the 
end  lines  of  the  claim.  This  presumption  may  be  indulged  as  to  the 
east  end  line,  but,  as  before  stated,  plaintiff  asserts  that  it  does 
not,  either  on  the  surface  or  underground,  pass  west  of  the  "cross- 
ing," which  contention  is  sustained  by  its  testimony,  while  that  of 
defendant  is  to  the  contrary.  Underground  there  may  be  some  in- 
dications of  a  ledge  west  of  the  crossing ;  but  little,  if  any,  ore 
has  been  found  there,  and  the  workings  of  the  mine,  with  some  un- 
miportant  exceptions,  sustain  plaintiff's  contention.  Upon  the  sur- 
face there  is  nothing  shown  by  which  to  definitely  locate  the  line  of 
this  crossing.  Conceding,  however,  that  the  ledge  intersects  the  east 
end  line,  from  whence  it  extends  no  further  than  about  2,200  feet 
westerly,  to  the  point  "C,"  fixed  by  the  witness  Morse  as  the  place 
where  he  found  the  croppings  of  the  ledge,  what  are  defendant's 
underground  rights?  That  the  end  lines  are  not  parallel  cannot  be 
the  basis  of  an  objection,  because  their  convergence,  when  extended 
in  the  direction  of  the  dip  of  the  vein,  would  give  defendant  less, 
instead  of  more,  than  the  law  provides  for. 

Attention  has  not  been  called  to  any  precedent  in  which  a  ledge 
is  abruptly  terminated  in  its  onward  course,  as  is  claimed  occurs  in 
this  case ;  but  a  similar  principle  is  involved  when  a  ledge,  passing 
through  an  end  line,  is  terminated,  as  to  the  claim,  by  going  through 
and  out  of  it  across  a  side  line.  Under  such  circumstances,  it  has 
been  held  that  the  ledge  may  be  followed,  on  its  descent,  between 
the  perpendicular  plane  drawn  through  such  intersected  end  line 
and  another  similar  parallel  plane  passing  through  the  point  where 
the  ledge  crosses  the  side  line.     *     *     * 

It  is  therefore  concluded  that  the  defendant  may  follow  its  ledge 
on  its  descent  under  the  Irish-American  claim,  and  to  any  depth, 
between  a  perpendicular  plane  drawn  through  the  east  end  line  of 
its  claim  and  another  similar  parallel  plane  crossing  such  claim  at 
the  point  fixed  as  the  western  terminus  of  the  ledge,  being  designated 
by  "C,"  and  westerly  from  the  east  end  line  2,200  feet,  measured 
along  the  straight  central  line  upon  the  plat,  and  along  the  like  line 
upon  defendant's  Exhibit  8:  provided,  that  defendant  shall  in  no 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  493 

event  pursue  its  ledge  west  of  a  perpendicular  plane  extended 
through  the  west  end  line  of  its  claim;  and  judgment  for  defendant 
is  ordered  accordingly. 

There  was  another  question  suggested,  but,  as  it  was  based  upon 
the  theory  that  the  course  of  the  ledge  was  such  as  would  carry  it 
across  the  side  lines,  which  I  cannot  adopt,  it  will  be  unnecessary  to 
consider  it. 


CATRON  V.  OLD  et  al. 
1897.     Supreme  Court  of  Colorado.     23  Colo.  433,  48  Pac.  687. 

Action  by  Benjamin  C.  Catron  against  Robert  O.  Old  and  Ellen 
Old  for  possession  of,  and  damages  to,  real  property.  The  trial  in 
the  court  below  resulted  in  a  verdict  and  judgment  for  defendants. 
Plaintiff  appeals.    Reversed. 

Hayt,  C.  J. — Upon  the  facts  which  are  conceded,  a  single  ques- 
tion of  law  is  raised.  The  point  in  controversy  may  be  clearly  un- 
derstood from  the  map  and  diagram  on  the  next  page.  The  plaintiff 
is  the  owner  of  the  Smuggler  mining  claim,  survey  lot  No.  7,373. 
Defendants  are  the  owners  of  the  Fulton  and  Mendota  mining 
claims,  survey  lots  Nos.  70  and  834.  All  the  claims  are  patented, 
and  there  is  no  question  of  surface  rights.  The  dotted  line  on  the 
map  shows  the  apex  of  the  vein  through  the  claims.  This  vein, 
which  has  been  explored  extensively  in  workings  upon  both  the 
Mendota  and  Fulton  claims,  dips  to  the  south  beneath  the  surface  of 
the  Smuggler  claim.  In  following  the  vein  upon  its  dip,  the  defend- 
ants passed  beyond  the  side  line  of  the  Fulton  claim,  and  are  work- 
ing beneath  the  surface  boundaries  of  the  Smuggler  claim  at  a  point 
marked '"A"  upon  the  map. 


The  question  presented  is  as  to  whether  the  vein  at  A  belongs  to 
the  owners  of  the  Fulton,  or  to  the  plaintiff,  by  reason  of  his  owner- 


494  SUB-SURFACE    RIGHTS. 

ship  of  the  Smuggler  claim.  The  plaintiff's  right  is  based  upon  his 
ownership  of  the  surface,  upon  the  common-law  principle  that  the 
owner  of  the  surface  owns  all  above  and  all  beneath.  The  defend- 
ants claim  by  reason  of  the  apex  of  the  vein  being  within  their  sur- 
face boundaries.  It  is  claimed  that  the  common-law  doctrine  is 
changed  by  section  2322  of  the  Revised  Statutes  of  the  United 
States,  which  provides,  inter  alia,  that  the  owners  of  the  surface 
shall  be  entitled  to  all  veins,  lodes,  or  ledges,  throughout  their  entire 
depth,  where  the  top  or  apex  of  such  vein  lies  within  the  surface 
lines  of  the  claim  extended  vertically  downward,  although  such 
veins,  lodes,  or  ledges  may,  in  their  downward  course,  so  far  depart 
from  a  perpendicular  as  to  extend  outside  the  side  lines  of  such  sur- 
face location ;  such  lateral  rights  to  be  confined  to  such  portions  as 
lie  between  vertical  planes  drawn  downward  through  the  end  lines 
of  the  location.  The  question  is  thus  sharply  defined  :  The  plaintiff 
claims  that,  by  reason  of  the  strike  of  the  vein  in  the  Fulton  location, 
the  defendants  have  no  extralateral  rights  whatever,  while  the  de- 
fendants claim  that  they  have  such  rights,  and  are  by  reason  thereof 
entitled  to  the  vein  in  its  downward  course  through  the  Smuggler 
territory.  Questions  upon  the  law  of  the  apex  under  the  United 
States  statutes  are  receiving  much  attention  from  the  mining  com- 
munities and  from  the  courts.  At  one  time  it  was  quite  generally  con- 
ceded that  the  owner  of  the  apex  might  follow  the  vein  upon  its  dip 
under  all  circumstances,  but  decisions  of  the  supreme  court  of  the 
United  States  in  recent  years  have  been  contrary  to  such  generally 
accepted  doctrine.  In  Mining  Co.  v.  Tarbet,  98  U.  S.  463,  it  was 
held  that  a  location  laid  across  a  vein,  so  that  its  greatest  length 
crosses  the  same  instead  of  following  the  course,  would  secure  only 
so  much  of  the  vein  as  it  actually  crosses  at  the  surface.  In  speak- 
ing of  the  right  to  follow  veins  upon  the  dip,  the  court  said,  in  refer- 
ence to  the  intent  of  the  statute :  "We  think  that  the  intent  of  both 
statutes  is  that  mining  locations  on  lodes  or  veins  shall  be  made  there- 
on lengthwise,  in  the  general  direction  of  such  veins  or  lodes  on  the 
surface  of  the  earth  where  they  are  discoverable,  and  that  the  end 
lines  are  to  cross  the  lode  and  extend  perpendicularly  downward,  and 
to  be  continued  in  their  own  direction  either  way  horizontally,  and 
that  the  right  to  follow  the  dip  outside  of  the  side  lines  is  based  on  the 
hypothesis  that  the  direction  of  these  lines  corresponds  substantially 
with  the  course  of  the  lode  or  vein  at  its  apex  on  or  near  the  surface. 
It  was  not  the  intent  of  th.e  law  to  allow  a  person  to  make  his  location 
crosswise  of  a  vein,  so  that  the  side  lines  shall  cross  it,  and  thereby 
give  him  the  right  to  follow  the  strike  of  the  vein  outside  of  his  side 
lines.  That  would  subvert  the  whole  system  sought  to  be  established 
by  the  law."  After  this  decision  was  rendered,  it  was  still  thought 
that  the  owner  of  the  apex  had  a  right  to  follow  the  vein  on  its  dip 
beyond  the  side  lines,  although  the  vein  crossed  both  side  lines,  and 


EXTRALATERAL    RIGHTS    UNDER   ACT    1 872.  495 

although  the  end  Hnes  were  to  be  treated  as  side  Hnes  and  the  side 
Hnes  as  end  hnes.  The  question  again  came  before  the  supreme  court 
in  the  case  of  Iron-Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co., 
118  U.  S.  196,  6  Sup.  Ct.   1 177,  which  was  a  contest  between  the 
owners  of  the  Stone  claim,  located  in  the  shape  of  a  horseshoe,  and 
an  adjoining  claim  ;  and  it  w^as  held  that  as  the  end  lines  of  the  Stone 
claim,  as  located  upon  the  surface,  were  not  parallel,  the  owners  had 
no  extralateral  rights,  and  were  not  permitted  to  follow  the  lode  in  its 
downward  course  beyond  the  side  lines  of  the  claim.     The  question 
next  came  before  that  court  in  the  case  of  Argentine  Min.  Co.  v.  Ter- 
rible Min.  Co.,  122  U.  S.  478,  7  Sup.  Ct.  1356,  where  it  was  again 
held  that  when  the  claim  upon  the  surface  crosses  the  vein,  instead  of 
being  along  the  same  as  provided  by  statute,  the  end  lines  of  the  claim 
became  the  side  lines  and  the  side  lines  became  the  end  lines,  and  that 
the  apex  rights  must  be  determined  accordingly.     Notwithstanding 
the  vein,  in  its  strike  across  the  country,  passed  across  the  side  lines, 
instead  of  running  parallel  with  them,  the  opinion  had  become  so 
firmly  fixed  that  these  decisions  did  not  entirely  overthrow  it ;  but  in 
the  subsequent  case  of  King  v.  Amy  &  Silversmith  Consol.  Min.  Co., 
152  U.  S.  222,  14  Sup.  Ct.  510,  the  language  of  the  court  left  no 
ground  for  dispute.     In  that  case  it  was  first  definitely  and  authori- 
tatively determined  that  when  a  vein  crossed  both  side  lines  of  a 
claim,  instead  of  running  in  a  direction  parallel  thereto,  the  owner  of 
the  surface  had  no  apex  rights  that  would  allow  him  to  follow  the 
vein  in  its  dip  beyond  a  vertical  plane  drawn  downward  from  the 
surface  boundaries  of  the  claim.     This  last  decision  was  followed  in 
the  more  recent  case  of  Last  Chance  M4n.  Co.  v.  Tyler  Min.  Co.,  157 
U.  S.  683,  15  Sup.  Ct.  733.     Therefore  it  may  now  be  said  that  the 
rule  is  well  established,  in  cases  other  than  horizontal  veins,  that  if 
the  vein,  in  its  strike  across  the  country,  is  parallel  to  the  side  lines  of 
a  claim,  the  owner  of  the  apex  has  the  right  to  follow  the  vein  to  any 
depth  in  its  dip  beneath  the  surface,  although  in  so  doing  he  passes 
beyond  the  side  lines  of  his  claim  into  adjoining  territory ;  and  it  is 
equally  well  settled  that,  when  the  strike  of  the  vein  is  across  the  side 
lines  of  a  claim,  no  extraterritorial  rights  are  acquired  by  reason  of 
the  ownership  of  the  apex.^^^   But  there  are  other  important  questions 
of  the  law  of  the  apex  which  have  not  at  this  writing  been  passed 
upon  by  the  supreme  court  of  the  United  States.     In  the  case  just 
cited  it  is  said,  as  to  one  of  such  questions,  "There  has  been  no  de- 
cision as  to  what  extralateral  rights  exist  if  a  vein  enters  at  an  end, 
and  passes  out  at  a  side,  line."     And  it  may  be  added  that  in  no  case 
has  that  court  directly  decided  the  question  before  us  in  the  case  at 
bar,  where  the  vein,  upon  its  strike,  enters  the  claim  by  crossmg  one 
side  line,  and  leaves  the  claim  at  the  same  side. 

It  is  claimed  by  appellant  that  the  facts  in  this  case  are  so  nearly 

^*a  See  note  7,  ante. 


496  SUB-SURFACE    RIGHTS. 

similar  to  the  facts  in  the  case  of  King  v.  Amy  &  Silversmith  Consol. 
Min.  Co.,  supra,  that  the  decision  in  that  case  against  the  right  of  the 
apex  owner  is  controlling  here.  There  is,  however,  a  marked  differ- 
ence between  the  two  cases,  as  will  be  seen  by  a  comparison  of  the 
diagram  in  this  case  with  the  one  to  be  found  in  the  opinion  in  that 
case.  Perhaps  the  case  at  bar  more  closely  resembles  the  claim  set 
up  by  the  owners  of  the  Stone  claim,  and  passed  upon  in  the  case  of 
Iron-Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co.,  supra;  the 
Stone  claim  being  located  in  the  shape  of  a  horseshoe,  and  the  loca- 
tion in  this  case  being  similar,  although  the  ends  of  appellees'  claim 
are  at  a  greater  distance  apart,  the  claim  being  in  the  form  of  an  ob- 
tuse angle.  The  latest  expressions  of  the  United  States  supreme 
court  upon  the  subject  seem  to  indicate  that  the  location  upon  the  sur- 
face must  substantially  cover  the  vein,  although  a  somewhat  different 
construction  has  been  put  upon  these  cases  by  some  of  the  circuit 
courts  of  the  United  States,  and  by  the  circuit  court  of  appeals  of  the 
Ninth  circuit.  In  the  case  of  Last  Chance  Min.  Co.  v.  Tyler  Min. 
Co.,  9  C.  C.  A.  613,  61  Fed.  557,  the  comparative  direction  of  the 
vein  was  thought  by  the  court  to  be  controlling,  and  in  that  case  it 
was  said  to  be  a  question  of  fact  as  to  whether  or  not  the  vein  ex- 
tended more  along  than  across  the  claim.  The  doctrine  of  Last 
Chance  Min.  Co.  v.  Tyler  Min.  Co.  was  followed  in  the  case  of  Con- 
solidated Wyoming  Gold  Min.  Co.  v.  Champion  Min.  Co.,  63  Fed. 
540,  the  opinion  in  both  cases  having  been  written  by  the  same  judge. 
In  the  latter  case  it  is  said :  "One  general  principle  should  pervade 
and  control  the  various  conditions  found  to  exist  in  different  loca- 
tions, and  its  guiding  star  should  be  to  preserve  in  all  cases  the  es- 
sential right  given  by  the  statute  to  follow  the  lode  upon  its  dip,  as 
well  as  upon  the  strike,  to  so  much  thereof  as  its  apex  is  found  within 
the  surface  lines  of  the  location.  If  the  lode  runs  more  nearly  par- 
allel with  the  end  lines  than  with  the  side  lines,  as  marked  on  the 
ground  as  such,  then  the  end  lines  of  the  location  must  be  considered 
by  the  courts  as  the  side  lines  meant  by  the  statute.  If  the  lode  runs 
more  nearly  parallel  with  the  side  lines  than  the  end  lines,  then  the 
end  lines,  as  marked  on  the  ground,  are  considered  by  the  court  as 
the  end  Hnes  of  the  location.  In  both  cases  the  extralateral  rights 
are  preserved  and  maintained  as  defined  in  the  statute."  In  both 
cases  the  learned  judge  proceeds  upon  the  doctrine  of  comparative 
direction  of  the  lode,  and  it  was  left  to  the  jury,  as  a  question  of  fact, 
whether  or  not  the  vein  extends  more  along  than  across  the  claim. 
The  obvious  objection  to  this  doctrine  is  that  it  introduces  a  feature 
of  uncertainty  into  mining  titles,  which  should  be  avoided  if  possible. 
Moreover,  it  is  in  irreconcilable  conflict  with  the  decision  of  the  su- 
preme court  of  the  United  States  in  the  Amy  &  Silversmith  Case, 
supra.  An  examination  of  the  plat  accompanying  and  made  a  part 
of  that  decision  shows  that  the  court  denied  extralateral  rights  to  a 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  497 

vein  which  in  fact  runs  "more  along  than  across"  the  location  upon 
the  surface.  In  the  case  of  Montana  Co.  v.  Clark,  42  Fed.  626,  it  was 
held  that,  where  a  claim  is  in  the  form  of  an  isosceles  triangle,  the 
owner  cannot  follow  the  lode  or  vein  upon  the  dip  through  the  side 
lines  of  the  claim  into  another  claim.  This  case  followed  the  Iron- 
Silver  Min.  Co.  V.  Elgin  Mining  &  Smelting  Co.  case,  supra,  and  pro- 
ceeded upon  the  theory  that,  to  the  exercise  of  the  right  to  follow  the 
vein  upon  its  dip,  the  end  lines  must  be  parallel.  With  the  exception 
of  the  Wyoming-Champion  Case,  these  cases  were  all  decided  before 
the  decision  of  the  Amy  &  Silversmith  Case,  supra,  was  announced, 
which  case,  as  we  have  stated,  contains  the  first  direct  and  positive 
declaration  upon  the  subject  by  the  supreme  court  of  the  United 
States.  There  has  been  one  decision  rendered  upon  the  question 
since  by  the  district  judge  of  this  district.  In  Del  Monte  Mining  (& 
Milling  Co.  v.  New  York  &  L.  C.  Min.  Co.,  66  Fed.  212,  a  question 
was  presented  as  to  apex  rights  between  the  New  York  claim  and 
the  Del  Monte  claim ;  the  New  York  being  higher  up  the  mountain 
than  the  Del  Monte,  and  holding  the  apex.  Explorations  had  dis- 
closed that  the  New  York  vein,  in  its  general  course,  had  within  its 
side  lines  the  apex,  for  a  distance  of  1,070  feet.  As  the  vein  entered 
one  end  line  of  the  New  York  claim,  the  only  difficulty  found  by  the 
district  judge  grew  out  of  the  fact  that  it  departed  from  the  side  lines 
of  the  claim  about  280  feet  from  the  end  line  opposite  the  place  of  en- 
trance ;  the  claim  being  less  than  the  full  length  allowed  by  statute. 
In  these  circumstances,  upon  a  preliminary  application,  the  learned 
district  judge  held  that  the  owners  of  the  New  York  were  entitled, 
by  reason  of  their  apex  rights,  to  follow  the  vein  in  its  downward 
course,  through  the  side  lines  of  the  claim,  and  beneath  the  surface 
boundaries  of  the  Del  Monte  location.  While  there  are  some  ex- 
pression^  in  the  opinion  which  would  seem  to  be  in  favor  of  the  con- 
tention of  appellees  in  this  case,  if  the  facts  are  not  considered,  yet 
when  it  is  remembered  that  the  vein  entered  one  end  line  of  the  New 
York  claim,  and  extended  more  than  1,000  feet  in  a  general  direction 
parallel  to  the  side  lines  of  the  claim,  it  would  seem  that  the  decision 
is  hardly  in  point  in  this  case.  In  the  recent  case  of  Mining,  etc.,  Co. 
V.  Turner,  23  Colo.  400,  48  Pac.  685,  this  court  held  that  where  a  vein 
passed  through  an  end  line  of  a  claim,  and  extended,  as  far  as 
disclosed  (this  being  for  a  considerable  distance),  in  a  general 
direction  parallel  to  the  side  lines  of  the  location,  the  lower  court 
was  justified  in  giving  the  claim  extralateral  rights,  there  being 
no  evidence  to  show  that  the  vein  departed  from  the  side  lines  of 
the  location  at  any  point,  the  presumption  being  that  the  vein  con- 
tinued regularly  upon  its  course.  In  the  case  at  bar  no  part  of  the 
Fulton  vein  runs  parallel,  or  nearly  parallel,  with  the  side  lines  of  that 
claim,  as  staked  upon  the  surface.  The  United  States  supreme  court 
has  said  that  if  the  locator  of  a  mining  claim  mistakes  the  direction 

32 — AIiNiNG  Law 


498  SUB-SURFACE    RIGHTS. 

of  his  vein,  and  locates  accordingly,  the  courts  have  no  power  to 
make  a  new  location  for  him,  but  must  determine  his  rights  with  ref- 
erence to  the  location  actually  made.  King  v.  Amy  &  Silversmith 
Consol.  Min.  Co.,  supra.  Developments  made  subsequent  to  the  lo- 
cation of  the  Fulton  disclose  that  the  claim,  as  located,  contains  very 
little  of  the  apex  of  the  vein,  and  such  as  it  does  contain  does  not 
cross  either  end  line,  and  does  not  run  parallel,  or  nearly  parallel,  to 
the  side  lines ;  so  that  in  no  aspect  of  the  law  can  the  Fulton  be  al- 
lowed extralateral  rights  by  reason  of  the  apex  of  the  vein.  The 
judgment  of  the  district  court  must  accordingly  be  reversed,  and  the 
cause  remanded  for  further  proceedings  in  accordance  with  this  opin- 
ion.    Reversed. 


LAWSON  V.  UNITED  STATES  MINING  COMPANY. 

1907.     Supreme  Court  of  the  United  States. 
207  U.  S.  I,  52.  L.  ed.  65,  28  Sup.  Ct.  15. 

On  writ  of  Certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Eighth  Circuit. 

This  suit  was  commenced  in  the  circuit  court  of  the  United  States 
for  the  district  of  Utah  by  the  United  States  Mining  Company,  claim- 
ing to  be  the  owner  of  certain  mining  property,  and  praying  that  its 
title  thereto  be  quieted  and  the  defendant  restrained  from  taking  any 
ore  therefrom.  *  *  *  On  the  hearing  the  court  *  *  *  en- 
tered a  decree  dismissing  the  plaintiff's  bill.  From  this  decree  the 
plaintiff  appealed  to  the  circuit  court  of  appeals  (67  C,  C.  A.  587, 
134  Fed.  769),  which  reversed  the  decree  of  dismissal,  and  remanded 
the  case  with  instructions  to  enter  a  decree  for  the  plaintiff  in  con- 
formity with  the  prayer  of  the  bill.  Thereupon,  on  application  of 
the  defendants,  the  case  was  brought  to  this  court  on  certiorari. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court  :^'    *    *    * 

Coming  now  to  the  merits,  it  is  not  open  to  dispute  that  the  defend- 
ants were  taking  ore  from  beneath  the  surface  of  the  plaintiff's  four 
claims.  The  question  therefore  arises.  What  right  had  they  to  thus 
mine  and  remove  ore?  They  must  show  that  the  ore  was  taken  from 
a  vein  belonging  to  them.  Was  there  a  vein  ?  Where  was  its  apex, 
and  who  was  the  owner  of  that  apex?  The  testimony  is  voluminous, 
and  even  with  the  accompanying  diagrams  it  is  difficult  to  come  to  a 
satisfactory  conclusion  as  to  the  facts.    *    *    * 

From  the  opinion  of  the  court  of  appeals  it  a]3pears  that  it  found 
that  there  was  a  broad  vein.  It  says :  "A  careful  examination  and 
consideration  of  the  evidence  clearly  convinces  us  that  the  stratum  of 
limestone  constitutes  a  single  broad  vein  or  lode  of  mineral-bearing 

"  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


EXTRALATERAL   RIGHTS    UNDER    ACT    1 872.  499 

rock  extending  from  the  quartzite  on  one  side  to  the  quartzite  on  the 
other."  This  stratum  of  limestone  underhes  the  four  claims  of  the 
plaintiff,  and  one  of  the  contentions  of  the  defendants  is  that  there 
are  several  independent  veins,  one  of  which  has  its  apex  within  the 
surface  lines  of  the  Kempton  and  another  its  apex  in  the  Ashland, 
that  these  independent  veins  continue  down  through  the  stratum  of 
limestone  beneath  the  surface  of  the  plaintiff's  claims,  and  that  it  was 
only  from  these  independent  veins  that  the  defendants  w^ere  mining 
and  removing  ore.  Of  course,  this  difference  between  the  conclu- 
sions of  the  court  and  the  contentions  of  the  defendants  affects  ma- 
terially the  scope  of  the  inquiry.  If  the  limestone  is  not,  strictly 
speaking,  a  vein,  but  a  mere  stratum  of  rock  through  which  run  sev- 
eral independent  veins,  then  the  inquiry  must  extend  to  the  location 
of  the  apex  of  each  separate  vein ;  whereas,  if  the  stratum  of  lime- 
stone is  itself  a  single  broad  vein,  then  the  inquiry  is  narrowed  to  the 
location  of  its  apex. 

With  reference  to  the  conclusion  of  the  court  of  appeals  it  is  suf- 
ficient to  say  that  if  the  testimony  does  not  show  that  it  is  correct,  it 
fails  to  show  that  it  is  wrong,  and  under  those  circumstances  we  are 
not  justified  in  disturbing  that  conclusion.  It  is  our  duty  to  accept 
a  finding  of  fact,  unless  clearly  and  manifestly  wrong. 

Treating  this  limestone  as  a  single  broad  vein,  it  is  apparent  that 
the  entire  apex  is  not  within  the  surface  of  either  the  Kempton  and 
Ashland,  but  that  it  is  also  found  in  the  Old  Jordan  and  IMountain 
Gem, — the  properties  of  the  plaintiff.  The  line  which  divides  the 
surface  of  the  claims  of  the  defendants  from  the  Old  Jordan  and 
Mountain  Gem  claims  also  bisects  the  vein  as  it  comes  to  the  surface. 
In  other  words,  part  of  the  apex  is  within  plaintiff's  claims  and  part 
within  defendants'.  In  such  a  case  the  senior  location  takes  the  en- 
tire width  of  the  vein  on  its  dip.  This  was  the  conclusion  of  the  court 
of  appeals,  as  shown  by  this  quotation  from  its  opinion  (p.  592)  : 

"Where  two  or  more  mining  claims  longitudinally  bisect  or  divide 
the  apex  of  a  vein,  the  senior  claim  takes  the  entire  width  of  the  vein 
on  its  dip,  if  it  is  in  other  respects  so  located  as  to  give  a  right  to  pur- 
sue the  vein  downward  outside  of  the  side  lines.  This  is  so  because 
it  has  been  the  custom  among  miners,  since  before  the  enactment  of 
the  mining  laws,  to  regard  and  treat  the  vein  as  a  unit  and  indivisible, 
in  point  of  width,  as  respects  the  right  to  pursue  it  extralaterally  be- 
neath the  surface ;  because  usually  the  width  of  the  vein  is  so  irreg- 
ular, and  its  strike  and  dip  depart  so  far  from  right  lines,  that  it  is  al- 
together impracticable,  if  not  impossible,  to  continue  the  longitudinal 
bisection  at  the  apex  throughout  the  vein  on  its  dip  or  downward 
course ;  and  because  it  conforms  to  the  principle  pervading  the  min- 
ing laws,  that  priority  of  discovery  and  of  location  gives  the  better 
right,  as  is  illustrated  in  the  provision  giving  to  the  senior  claim  all 
ore  contained  in  the  space  of  intersection  where  two  or  more  veins 


500  SUB-SURFACE    RIGHTS. 

intersect  or  cross  each  other,  and  in  the  further  provision  giving  to 
the  senior  claim  the  entire  vein  at  and  below  the  point  of  union, 
where  two  or  more  veins  with  distinct  apices  and  embraced  in  sepa- 
rate claims  unite  in  their  course  downward.  Rev.  Stat.  §  2336,  U.  S. 
Comp.  Stat.  1901,  p.  1436." 

We  fully  indorse  the  views  thus  expressed,  Discovery  is  the  all- 
important  fact  upon  which  title  to  mines  depends.  *  *  *  To  take 
from  the  discoverer  a  portion  of  that  which  he  has  discovered  and 
give  it  to  one  who  may  have  been  led  to  make  an  adjoining  location 
by  a  knowledge  of  the  discovery,  and  without  any  previous  searching 
for  mineral,  is  manifest  injustice. 

Again,  as  indicated  in  the  quotation  from  the  court  of  appeals,  con- 
tinuing the  line  of  division  shown  upon  the  surface  through  the  de- 
scending vein  would  be  attended  with  great  difficulty  and  uncertainty. 
Dealing  with  questions  of  this  nature,  a  practical  view  must  be  taken. 
Veins  do  not  continue  of  uniform  width  in  their  descent,  but  are 
often  irregular  and  broken,  and  to  attempt  to  make  a  division  of  ore 
according  as  it  appears  on  the  surface,  or  equally,  would  require  the 
constant  supervision  of  a  court.  It  is  not  strange,  then,  that  the  cus- 
tom of  miners  has  been,  as  stated  by  the  court  of  appeals,  to  regard 
and  treat  the  vein  as  a  unit  and  indivisible  in  point  of  width,  and  be- 
longing to  the  discoverer.    *    '^    * 

But  it  is  contended  by  the  defendants  that  both  the  entries  and  pat- 
ents of  the  Ashland  and  Kempton  claims  were  prior  in  time  to  the 
entries  and  patents  of  the  Old  Jordan  and  Mountain  Gem,  and  that 
such  priority  of  entry  and  patent  conclusively  establishes  the  prior 
right  of  the  owners  to  this  broad  vein ;  that  the  failure  of  the  owners 
of  the  Old  Jordan  and  Mountain  Gem  to  adverse  the  applications  of 
the  owners  of  the  Ashland  and  Kempton  for  patent  was  an  admission 
that  the  latter  had  priority  of  right,  and  is  conclusive  against  any 
present  testimony  as  to  the  dates  of  the  location.  We  had  occasion 
in  the  recent  case  of  Creede  &  C.  C.  Min.  &  Mill.  Co.  v.  Uinta  Tunnel 
Min.  &  Transp.  Co.,  196  U.  S.  337,  49  L.  ed.  501,  25  Sup.  Ct.  Rep. 
266,  to  consider  to  what  extent  the  issue  of  a  mining  patent  worked 
an  estoppel  of  the  claims  of  third  parties,  and  it  is  unnecessary  now 
to  repeat  the  discussion  there  had. 

This  case  presents  the  question  under  different  aspects.  The  en- 
tries and  patents  of  the  Ashland  and  Kempton  claims  were,  as  stated, 
prior  in  time  to  the  entries  and  patents  of  the  Old  Jordan  and  Moun- 
tain Gem.  There  is  no  record  of  any  adverse  suits,  although  it  is 
intimated  that  there  were  such  suits.  In  the  absence  of  a  record 
thereof  we  cannot  assume  that  anything  more  was  presented  and  de- 
cided than  was  necessary  to  justify  the  patents.  A  patent  is  issued 
for  the  land  described,  and  all  that  is  necessarily  determined  in  an 
adverse  suit  is  the  priority  of  right  to  the  land.     *     *     * 

Without  determining  what  would  be  the  effect  of  a  judgment  in  an 


EXTRALATERAL    RIGHTS    UNDER   ACT    1 872.  5OI 

adverse  suit  in  respect  to  subterranean  rights,  if  any  were  in  fact  pre- 
sented and  adjudicated,  it  is  enough  now  to  hold  that  there  is  no  pre- 
sumption, in  the  absence  of  the  record,  that  any  such  rights  were  con- 
sidered and  determined.  Indeed,  in  the  absence  of  a  record,  or  some 
satisfactory  evidence,  it  is  to  be  assumed  that  the  patents  were  issued 
without  any  contest  and  upon  the  surveys  made  under  the  direction 
of  the  United  States  surveyor  general,  and  included  only  ground  in 
respect  to  which  there  was  no  conflict.  If  the  surface  ground  in- 
cluded in  an  application  does  not  conflict  with  that  of  an  adjoining 
claimant,  the  latter  is  in  no  position  to  question  the  right  of  the  for- 
mer to  a  patent.  Take  the  not  infrequent  case  of  two  claims  adjoin- 
ing each  other,  the  boundary  line  between  which  is  undisputed.  If 
the  owner  of  one  applies  for  a  patent  the  owner  of  the  other  is  clearly 
under  no  obligation  to  adverse  that  application,  even  if,  under  any 
circumstances,  he  might  have  a  right  to  do  so.  Other  necessary  con- 
ditions being  proved,  the  applicant  is  entitled  to  a  patent  for  the 
ground.  Generally  speaking,  if  the  boundary  between  the  two  claims 
is  undisputed  the  foundation  for  an  adverse  suit  is  lacking.  While  a 
patent  is  evidence  of  the  patentee's  priority  of  right  to  the  ground 
described,  it  is  not  evidence  that  that  right  was  initiated  prior  to  the 
right  of  the  patentee  of  adjoining  tract  to  the  ground  within  his  claim. 

Section  2336,  Rev.  Stat.  (U.  S.  Comp.  Stat.  1901,  p.  1436),  makes 
provision  for  conflict  as  to  certain  subterranean  rights.  The  last  sen- 
tence of  the  section  reads  :  "And,  where  two  or  more  veins  unite,  the 
oldest  or  prior  location  shall  take  the  vein  below  the  point  of  union, 
including  all  the  space  of  intersection."  Argentine  Min.  Co.  v.  Ter- 
rible Min.  Co.  supra.  As  the  place  of  union  may  be  far  below  the 
surface,  this  evidently  contemplates  inquiry  and  decision  after  patent, 
and  then  it  can  only  be  in  the  courts.  And  the  same  rule  will  obtain 
as  to  other  subterranean  rights.    '^    "    * 

Summing  up  our  conclusions,  the  findings  of  fact  as  stated  in  the 
opinion  of  the  court  of  appeals  are  not  clearly  against  the  testimony, 
and  must,  therefore,  be  sustained.  According  to  those  findings  there 
was  a  single  broad  vein, — the  apex  or  outcroppings  of  which  ex- 
tended through  the  limits  of  some  of  the  plaintifif's  and  defendants' 
claims, — and  not  several  independent  veins.  The  ore  which  was  be- 
ing mined  and  removed  by  the  defendants  was  taken  from  this  single 
broad  vein  beneath  the  surface  ground  of  claims  belonging  to  the 
plaintiff.  Where  there  is  a  single  broad  vein  whose  apex  or  outcrop- 
pings extend  into  two  adjoining  mining  claims  the  discoverer  has  an 
extralateral  right  to  the  entire  vein  on  its  dip.  Acceptance  by  the 
government  of  location  proceedings  had  before  the  statute  of  1866, 
and  issue  of  a  patent  thereon,  is  evidence  that  those  location  proceed- 
ings were  in  accordance  with  the  rules  and  customs  of  the  local  min- 
ing district.  The  priority  of  right  to  a  single  broad  vein  vested  in 
the  discoverer  is  not  determined  by  the  dates  of  the  entries  or  patents 


502  SUB-SURFACE    RIGHTS. 

of  the  respective  claims,  and  priority  of  discovery  may  be  shown  by 
testimony  other  than  the  entries  and  patents.  In  the  absence  from 
the  record  of  an  adverse  suit  there  is  no  presumption  that  anything 
was  considered  or  determined  except  the  question  of  the  right  to  the 
surface. 

From  these  conclusions  it  is  obvious  that  the  decision  of  the  Circuit 
Court  of  Appeals  was  right,  and  it  is  affirmed. 


(b)     Secondary  Veins. 

WALRATH  V.  CHAMPION  MIN.  CO. 

1898.     Superior  Court  of  the  United  States. 
171  U.  S.  293,  43  L.  ed.  170,  18  Sup.  Ct.  909. 

Appeal  from  the  United  States  Circuit  Court  of  Appeals  for  the 
Ninth  Circuit. 

This  action,  brought  in  the  superior  court  of  Nevada,  Cal.,  involves 
title  to  a  triangular  shaped  section  of  what  is  known  as  the  "Contact," 
"'Ural,"  or  "Back"  ledge  of  gold-bearing  ore,  situated  in  the  same 
county,  claimed  by  appellant  to  be  a  portion  of  the  Providence  mine, 
to  wliich  complainant  has  title  through  a  patent  from  the  United 
States ;  and  by  appellee,  a  corporation,  to  be  a  part  of  the  New  Years 
Extension  mine,  owned  by  it. 

The  relative  situation  of  the  two  properties,  and  the  portion  of  the 
ledge  in  controversy,  is  shown  by  the  following.  Fig.  No.  i  (the  dis- 
puted section  being  contained  between  the  lines  thereon  marked  "Line 
claimed  by  Providence,"  and  "Line  claimed  by  Champion")  : 

The  figures  marked  "New  Years"  and  "New  Years  Extension" 
represent  the  surface  of  the  mining  properties  owned  by  defendant, 
while  that  marked  "Providence  Mine"  represents  the  surface  of  the 
patented  ground  of  the  plaintiflf. 

The  action  was  brought  May  24,  1892,  to  recover  $300,000  dam- 
ages for  ore  extracted  from  the  ledge  and  carried  away  by  the  de- 
fendant, and  for  an  injunction  against  further  trespasses  thereon. 

Upon  motion  of  appellee,  the  action  was  removed  to  the  United 
States  circuit  court,  as  involving  a  federal  question,  where  the  corn- 
plainant  recast  his  pleadings  so  as  to  separate  the  action  into  a  bill  in 
equity,  upon  which  the  action  is  now  proceeding,  and  an  action  at  law 
for  the  damages  alleged. 


EXTRALATERAL    RIGHTS    UNDER    ACT    l872. 


503 


FIG.l 


..ji"^^ ^ 


---..^- 


504 


SUB-SURFACE    RIGHTS. 


The  suit  in  equity  was  tried  in  the  circuit  court,  and  decided  mainly 
in  favor  of  the  appellee.     63  Fed.  552.^® 

^^  The  diagram  found  on  page  554  of  this  case  was  as  follows : 


'CKaT^"P 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872. 


505 


From  this  decree  the  appellant  appealed  to  the  court  of  appeals  for 
the  Ninth  circuit,  where  it  was  modified,  and  as  modified  affirmed. 
19  C.  C.  A.  323,  72  Fed.  978. 

The  appellant  now  brings  the  case  to  this  court  upon  writ  of  error 
from  the  court  of  appeals. 

FIG. 2. 


New  Years  Extension  ^ 

fiS   ORiQtN/lLLY  LOCATED, 

SHADED     PART  SHOWING    LODE  AND 
SURFACE   CONFLICT   YHTH   PROVIDENCE, 


The  appellant's  title  is  deraigned  as  follows :  In  1857,  under  the 
miners'  rules  and  customs  then  in  force,  31  locators  located  3,100  feet 
of  the  Providence  or  Granite  lode.  By  mesne  conveyances  the  title 
to  this  location  became  vested  in  the  Providence  Gold  &  Silver  Min- 
ing Company ;  and  on  April  28,  1871,  that  company  obtained  a  patent 


506  SUB-SURFACE    RIGHTS. 

to  3,100  feet  of  the  lode,  and  for  surface  ground,  as  described  in  the 
patent. 

The  title  thus  granted  to  the  Providence  Gold  &  Silver  Mining 
Company  was,  before  the  commencement  of  this  suit,  vested  in  the 
appellant. 

The  ledge,  as  granted  by  the  patent,  extends  30  feet  north  of  the 
north  surface  line  of  the  location,  and  some  680  feet  south  of  the 
south  surface  line. 

The  patent  conveyed  only  the  Providence  ledge  and  the  surface 
ground.  All  other  ledges  contained  within  the  surface  lines  were  ex- 
pressly reserved. 

It  is  also  contended  by  appellant  that  by  the  act  of  congress  of 
May  10,  1872,  exclusive  possession  of  all  the  surface  included  within 
the  lines  of  the  location  was  granted  to  the  owners  of  the  Providence, 
together  with  all  other  lodes  or  ledges  having  their  tops  or  apexes 
within  such  surface  lines.  This  grant,  of  course,  included  the  Con- 
tact vein,  subsequently  discovered  within  said  boundaries,  and  now 
constituting  the  bone  of  contention  in  this  action. 

The  Contact  vein  is  shown  in  the  figure,  and  crosses  the  surface 
line  f-g  of  the  Providence  location. 

On  September  29,  1877,  the  appellee  and  defendant,  the  Champion 
Mining  Company,  made  a  location  upon  the  Contact  vein,  called  the 
"New  Years  Extension  Mine."  This  location  overlapped,  both  as  to 
surface  ground  and  lode,  upon  the  Providence  location ;  that  is,  the 
lode  line  and  surface  lines  of  the  said  New  Years  Extension  extended 
to  the  south  of  the  boundary  line,  f-g,  of  the  Providence  location. 

The  New  Years  Extension  mine  is  shown  in  the  following,  Fig, 
No.  2,  together  with  the  conflict  caused  by  the  overlap  (the  conflict- 
ing surface  portion  being  shaded,  and  showing  the  Contact  vein  pass- 
ing through  it). 

In  the  year  1884  the  complainant  and  his  co-owners  objected  to  the 
overlap,  and  demanded  of  the  Champion  Mining  Company  that  it 
abandon  all  claims  to  the  surface  and  lode  to  the  south  of  the  Provi- 
dence boundary  line,  above  described.  Thereupon,  in  the  month  of 
November,  1884,  John  Vincent,  the  superintendent  of  the  defendant, 
the  Champion  Mining  Company,  under  the  authority  and  by  the  di- 
rection of  the  said  company,  relocated  the  New  Years  Extension  mine 
by  a  notice  of  relocation,  in  which  the  fact  of  the  overlap  under  the 
original  location  was  particularly  recited ;  and  the  lines  were  read- 
justed so  as  to  avoid  the  overlap,  and  to  conform  to  said  line  f-g  of 
the  Providence  mine,  as  shown  on  Fig.  i. 

In  the  notice  of  relocation  the  lode  line  was  particularly  described 
as  follows :  "The  lode  line  of  this  claim,  as  originally  located,  and 
which  I  hereby  relocate,  is  described  as  follows :  Commencing  at  a 
point  on  the  northerly  bank  of  Deer  creek,  which  point  is  60  feet  S., 
II  degrees  45  minutes  east,  of  the  mouth  of  the  New  Years  tunnel, 


EXTRALATERAL    RIGHTS    UNDER   ACT    18/2.  507 

and  running  thence  along  the  Hne  of  the  lode  towards  the  N.  E.  cor- 
ner of  the  Providence  mill,  about  S.,  46  degrees  15  minutes  east,  200 
feet,  more  or  less,  to  a  point  and  stake  on  the  northerly  line  of  the 
Providence  mine,  patented,  designated  as  '^Mineral  Lot  No.  40,'  for 
the  south  end  of  said  lode  line." 

It  also  contained  the  following  statement : 

"And  whereas,  part  of  this  claim,  as  originally  described,  and  as 
hereby  relocated,  conflicts  with  the  rights  granted  by  letters  patent  of 
said  Providence  mine,  said  lot  No.  40:  Now,  therefore,  so  much  of 
this  claim,  both  for  lode  and  surface  ground,  as  originally  conflicted 
or  now  conflicts  with  any  portion  of  the  surface  or  lode  claims  or 
rights  granted  by  said  patent,  is  and  are  hereby  abandoned,  wdiich 
portion  of  this  claim  so  abandoned  is  described  as  follows :  All  that 
portion  of  the  above-described  New  A'ears  Extension  claim  for  sur- 
face and  lode  which  lies  south  of  the  northern  boundary  line  of  said 
Providence  mine,  which  runs  north,  43  degrees  10  minutes  east, 
across  the  southeastern  corner  of  this  claim.'' 

The  New  Years  Extension,  as  relocated,  is  coterminous  with  the 
Providence  mine  on  the  northerly  boundary  line,  designated  as  the 
line  f-g,  running  S.,  43  deg.  W.     Fig.  i. 

That  line  is  the  only  boundary  between  the  two  properties,  and  the 
only  boundary  of  the  Providence  location  which  is  crossed  by  the 
Contact  ledge. 

The  first  workings  of  the  appellee  involved  no  conflict  with  appel- 
lant. The  shaft  ran  parallel  with  the  Providence  line,  and  none  of 
the  levels  crossed  that  line  until  about  three  months  before  this  suit 
was  begun,  when  the  1,000-foot  level  was  driven  across  it  into  the 
ground  in  dispute.  Subsequently  the  eighth  and  ninth  levels  were 
driven  across. 

The  work  done  by  the  Providence  was  carried  on  through  a  shaft 
sunk  on  the  Providence  or  Granite  ledge,  from  which  shaft  a  cross- 
cut was  run  back  to  the  Contact  vein  on  the  600-foot  level,  and  an- 
other on  the  1,250-foot  level ;  and  much  of  the  ground  now  in  contro- 
versy was  thereby  prospected  and  opened  up  by  complainant  and  his 
co-owners.     See  Fig.  i. 

The  claims  of  the  respective  parties  will  be  readily  understood  by 
reference  to  Fig.  i,  which  shows  the  relative  position  of  all  the  min- 
ing properties  belonging  to  both,  with  the  lines  claimed  by  them. 

The  portion  of  the  Contact  vein  in  dispute  is  that  upon  the  dip  of 
the  ledge  lying  between  the  lines  marked  "Line  claimed  by  Provi- 
dence" and  the  line  marked  "Line  claimed  by  Champion." 

The  apex  of  the  Contact  vein  is  represented  by  the  dotted  line  x-x\ 
and  shows  the  vein  as  far  as  exposed  in  both  the  Champion  and  Prov- 
idence ground.  South  of  x.  the  course  of  the  vein  in  the  Providence 
eround  is  unknown. 


508  ■  SUB-SURFACE    RIGHTS. 

The  line  i-g  is  the  same  Hne  as  that  designated  A-B  by  some  of 
the  witnesses. 

Upon  the  trial  the  circuit  court  held  that  there  could  be  but  one  end 
line  for  each  end  of  the  Providence  location,  and  that  the  lines  g-h 
and  a-p  constituted  such  end  lines ;  that  such  lines  constituted  the 
end  lines  of  not  only  the  originally  discovered  Providence  lode,  but 
also  of  every  other  vein  that  might  be  discovered  within  the  surface 
lines  of  the  location.  But,  notwithstanding  this  holding",  in  entering 
the  decree  the  line  f-g  was  also  established  as  an  end  line  of  the  Con- 
tact vein,  but  for  its  length  only,  and  then  that  from  g  the  line  g-h, 
and  that  line  extended  indefinitely  eastwardly,  constituted  another 
end  line  for  the  same  end  of  the  lode,  and  constituted  the  line  through 
which  the  plane  determinative  of  all  extralateral  rights  in  the  vein 
must  be  drawn. 

From  this  decree  the  appellant  here  was  allowed  an  appeal  to  the 
circuit  court  of  appeals. 

The  latter  court  established  the  line  g-h-h^  as  the  sole  end  line  of 
the  Contact  vein,  and  reversed  the  decree  of  the  circuit  court  in  so 
far  as  it  fixed  the  line  f-g  as  an  end  line. 

As  a  result  of  this  decree  the  complainant  was  not  only  shut  out  of 
all  extralateral  rights  in  the  Contact  vein  north  of  the  line  g-h-h\ 
but  also  of  that  portion  of  the  vein  lying  vertically  beneath  the  sur- 
face lines  of  the  Providence  which  extend  north  of  that  line,  and 
which  are  marked  upon  the  figures  as  constituting  the  parallelogram 
h-i-k-h\  which  was  awarded  to  the  Champion.  See  Fig.  i,  show- 
ing the  end  line  fixed  by  the  circuit  court  and  that  line  as  subse- 
quently fixed  by  the  court  of  appeals,  with  the  latter  line  extended 
in  its  own  direction  both  easterly  and  westerly. 

From  the  judgment  of  the  circuit  court  of  appeals  the  appellant 
has  appealed  to  this  court. 

There  are  nine  assignments  of  error.  The  first  eight  attack  so 
much  of  the  decree  as  establishes  the  line  g-h  as  an  end  line,  for  the 
purpose  of  determining  the  extralateral  right,  or  fails  to  establish  the 
line  f-g,  and  that  line  produced  indefinitely  in  the  direction  of  g^,  as 
such  end  line.  The  last  two  assail  so  much  of  the  decree  as  awards 
to  appellee  the  right  to  pursue  the  vein  on  its  downward  course 
underneath  the  parallelogram  h-i-k-h^ 

Mr.  Justice  McKenna,  after  stating  the  facts  in  the  foregoing 
language,  delivered  the  opinion  of  the  court. ^'^ 

There  are  two  questions  presented  by  the  assignment  of  errors : 

( 1 )  What  are  the  extralateral  rights  of  the  appellant  on  the  Con- 
tact vein  ? 

(2)  Is  appellant  entitled  to  that  portion  of  the  Contact  vein  within 
the  Providence  boundaries  which  lies  north  of  the  north  end  line 

"A  part  of  the  opinion  which  discusses  an  agency  question  is  omitted. 


EXTRALATERAL    RIGHTS    UNDER    ACT    18/2.  5O9 

fixed  by  the  court,  and  which  is  described  upon  Fig.  i  as  the  parallel- 
ogram bounded  by  the  lines  marked  h-i-k-h^? 

I.  The  appellant  contends  that  the  patent  of  the  Providence  ledge 
was  conclusive  evidence  of  his  title  to  3,100  feet  in  length  of  that  vein. 
If  true,  this  carried  the  northern  end  of  the  ledge  30  feet  beyond  the 
line  fixed  by  either  the  circuit  court  or  the  circuit  court  of  appeals. 
It  was  truly  said  at  bar :  "If  it  is  not  the  end  line  of  the  Providence 
location,  then  certainly  there  is  no  reason  for  holding  it  to  be  the  end 
line  of  the  Contact  vein." 

The  language  of  the  patent  is :  'Tt  being  the  intent  and  meaning 
of  these  presents  to  convey  vmto  the  Providence  Gold  and  Silver  Alin- 
ing Company,  and  to  their  successors  and  assigns,  the  said  vein  or 
lode  in  its  entire  width  for  the  distance  of  thirty-one  hundred  (3,100) 
feet  along  the  course  thereof." 

The  patent  was  issued  under  the  act  of  1866,  and  it  is  necessary, 
therefore,  to  some  extent,  to  consider  that  act.  By  it,  the  appellant 
urges,  the  principal  thing  patented  was  the  lode,  and  that  the  north- 
ern limit  of  that,  and  hence  of  his  rights  on  that,  was  30  feet  north 
of  the  line  fixed  by  the  circuit  court  of  appeals ;  and  hence  it  is  fur- 
ther contended  that,  as  the  northern  and  southern  surface  lines  (g-h 
and  a-p)  did  not  determine  or  limit  his  right  to  the  lode  under  the 
act  of  1866, — in  other  words,  did  not  become  end  lines, — they  do  not 
become  end  lines  upon  the  Contact  ledge  (x'-x")  acquired  under  the 
act  of  1872,  but  that  the  surface  line  which  crosses  the  strike  of  that 
ledge  must  be  held  to  be  the  end  line,  and  the  line  which  fixes  the 
rights  of  the  parties.  This  line  is  f-g.  Fig.  i,  and,  if  appellant  is 
correct,  determines  the  controversy  in  his  favor. 

The  extent  of  the  right  passing  under  the  act  of  1866  has  been 
decided  by  this  court. 

In  Alining  Co.  v.  Tarbet,  98  U.  S.  463,  known  as  the  "Flagstaff 
Case,"  the  superficial  area  of  the  Flagstaff  mine  was  100  feet  wide  by 
2,600  feet  long.  It  lay  across  the  lode,  not  with  it ;  and  the  company 
contended,  notwithstanding  that,  it  had  a  right  to  the  lode  for  the 
length  of  the  location.  In  other  words,  the  contention  was  that  it 
was  the  lode  which  was  granted,  and  that  the  surface  ground  was  a 
mere  incident  for  the  convenient  working  of  the  lode.  The  conten- 
tion was  presented  and  denied  by  the  instructions  which  were  given 
and  refused  by  the  lower  court.  That  court  instructed  the  jury  that 
if  they  found  Tarbet  "was  in  possession  of  the  claim  (describing  it), 
holding  the  same  in  accordance  with  the  mining  laws  and  the  cus- 
toms of  the  miners  of  the  mining  district,  and  that  the  apex  and 
course  of  the  vein  in  dispute  is  within  such  surface,  then,  as  against 
one  subsequently  entering,  he  is  deemed  to  be  possessed  of  the  land 
within  his  boundaries  to  any  depth,  and  also  of  the  vein  in  the  surface 
to  any  depth  on  its  dip.  though  the  vein  in  its  dip  downward  passes 
the  side  line  of  the  surface  boundary,  and  extends  beneath  other  and 


5IO 


SUB-SURFACE   RIGHTS. 


adjoining  lands ;  and  a  trespass  upon  such  part  of  the  vein  on  its  dip, 
though  beyond  the  side  surface  Une,  is  unlawful,  to  the  same  extent 
as  a  trespass  on  the  vein  inside  of  the  surface  boundary.  This  pos- 
session of  the  vein  outside  of  the  surface  line,  on  its  dip,  is  limited  in 
two  ways, — by  the  length  of  the  course  of  the  vein  within  the  surface, 
and  by  an  extension  of  the  end  lines  of  the  surface  claim  vertically, 
and  in  their  own  direction,  so  as  to  intersect  the  vein  on  its  dip ;  and 
the  right  of  a  possessor  to  recover  for  trespass  on  the  vein  is  subject 
to  only  these  restrictions." 

Again:  "The  defendant  (plaintiff  in  error)  has  not  shown  any 
title  or  color  of  title  to  any  part  of  the  vein,  except  so  much  of  its 
length  on  the  course  as  lies  within  the  Flagstaff  surface,  and  the  dip 
of  the  vein  for  that  length ;  and  it  has  shown  no  title  or  color  of  title 
to  any  of  the  surface  of  the  South  Star  and  Titus  mining  claim,  ex- 
cept to  so  much  of  No.  3  as  lies  within  the  patented  surface  of  the 
Flagstaff  mining  claim." 

And  the  following  instructions  propounded  by  the  owner  of  the 
Flagstaff : 

"By  the  act  of  congress  of  July  26,  1866,  under  which  all  these  lo- 
cations are  claimed  to  have  been  made,  it  was  the  vein  or  lode  of 
mineral  that  was  located  and  claimed.  The  lode  was  the  principal 
thing,  and  the  surface  area  was  a  mere  incident  for  the  convenient 
working  of  the  lode.  The  patent  granted  the  lode,  as  such,  irrespect- 
ive of  the  surface  area,  which  an  applicant  was  not  bound  to  claim. 
It  was  his  convenience  for  working  the  lode  that  controlled  his  loca- 
tion of  his  surface  area ;  and  the  patentee,  under  that  act,  takes  a  fee- 
simple  title  to  the  lode,  to  the  full  extent  located  and  claimed  under 
said  act." 

Commenting  on  the  instructions,  Mr.  Justice  Bradley,  speaking 
for  the  court,  said : 

"These  instructions  and  refusals  to  instruct  indicate  the  general  po- 
sition taken  by  the  court  below,  namely,  that  a  mining  claim  secures 
only  so  much  of  a  lode  or  vein  as  it  covers  along  the  course  of  the 
apex  of  the  vein  on  or  near  the  surface,  no  matter  how  far  the  loca- 
tion may  extend  in  another  direction." 

And  after  stating  that  the  act  of  1872  was  more  explicit  than  that 
of  1866,  but  the  intent  of  both  undoubtedly  the  same,  as  it  respects 
lines  and  side  lines,  and  the  right  to  follow  the  dip  outside  of  the 
latter,  he  proceeded  as  follows : 

"We  think  that  the  intent  of  both  statutes  is  that  mining  locations 
on  lodes  or  veins  shall  be  made  thereon  lengthwise,  in  the  general 
direction  of  such  veins  or  lodes  on  the  surface  of  the  earth  where  they 
are  discoverable,  and  that  the  end  lines  are  to  cross  the  lode,  and  ex- 
tend perpendicularly  downwards,  and  to  be  continued  in  their  own 
direction  either  way  horizontally,  and  that  the  right  to  follow  the  dip 
outside  of  the  said  lines  is  based  on  the  hypothesis  that  the  direction 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  5II 

of  these  lines  corresponds  substantially  with  the  course  of  the  lode  or 
vein  at  its  apex  on  or  near  the  surface.  It  was  not  the  intent  of  the 
law  to  allow  a  person  to  make  his  location  crosswise  of  a  vein,  so  that 
the  side  lines  shall  cross  it,  and  thereby  give  him  the  right  to  follow 
the  strike  of  the  vein  outside  of  his  said  lines.  That  would  subvert 
the  whole  system  sought  to  be  established  by  the  law.  If  he  does 
locate  his  claim  in  that  way,  his  rights  must  be  subordinated  to  the 
rights  of  those  who  have  properly  located  on  the  lode.  Their  right 
to  follow  the  dip  outside  of  their  said  lines  cannot  be  interfered  with 
by  him.  His  right  to  the  lode  only  extends  to  so  much  of  the  lode  as 
his  claim  covers.  If  he  has  located  crosswise  of  the  lode,  and  his 
claim  is  only  one  hundred  feet  wide,  that  one  hundred  feet  is  all  he 
has  a  right  to.  This  we  consider  to  be  the  law  as  to  locations  on 
lodes  or  veins. 

"The  location  of  the  plaintiff  in  error  is  thus  laid  across  the  Titus 
lode  (that  is  to  say,  across  the  course  of  its  apex  at  or  near  the  sur- 
face) ;  and  the  side  lines  of  the  location  are  really  the  end  lines  of  the 
claim,  considering  the  direction  or  course  of  the  lode  at  the  surface. 

"As  the  law  stands,  we  think  the  right  to  follow  the  dip  of  the  vein 
is  bounded  by  the  end  lines  of  the  claim,  properly  so  called,  which 
lines  are  those  which  are  crosswise  of  the  general  course  of  the  vein 
on  the  surface.  The  Spanish  mining  law  confined  the  owner  of  a 
mine  to  perpendicular  lines  on  every  side,  but  gave  him  greater  or 
less  width  according  to  the  dip  of  the  vein.  See  Rock.  Mines,  pp. 
56-58,  and  pp.  274,  275.  But  our  laws  have  attempted  to  establish 
a  rule  by  which  each  claim  shall  be  so  many  feet  of  the  vein,  length- 
wise of  its  course,  to  any  depth  below  the  surface,  although  laterally 
its  inclination  shall  carry  it  ever  so  far  from  a  perpendicular.  This 
rule  the  court  below  strove  to  carry  out,  and  all  its  rulings  seem  to 
have,  been  in  accordance  with  it." 

This  law  was  followed  and  applied  in  Argentine  Min.  Co.  v.  Ter- 
rible Min.  Co.,  122  U.  S.  478,  7  Sup.  Ct.  1356,  and  in  Iron-Silver 
Min.  Co.  V.  Elgin  Mining  &  Smelting  Co.,  118  U.  S.  196,  6  Sup.  Ct. 
1 1 77;  King  v.  Mining  Co.,  152  U.  S.  222,  14  Sup.  Ct.  510.  The  loca- 
tions passed  upon  in  these  cases  were  made  under  the  act  of  1872,  but 
we  have  seen  that  the  intent  of  that  act  and  the  act  of  1866,  "as  it  re- 
spects end  lines  and  side  lines,"  was  the  same. 

But  appellant  urges  that  "those  cases  are  not  in  point  here."  We 
think  that  they  are.  The  patent  in  the  Flagstaff  Case  appears  to  have 
been  the  same  as  here,  and,  besides,  whatever  the  patent  here,  it  must 
be  confined  to  the  rights  given  by  the  statute  which  authorized  it. 

In  the  Flagstaff  Case  the  lode  was  claimed,  and  hence  the  right  to 
follow  it  beyond  the  surface  boundaries  of  the  location  was  claimed. 
Here  the  lode  is  claimed,  and  the  right  to  follow  it  ovitside  of  the  sur- 
face boundaries  ;  that  is,  beyond  the  line  f-g  to  the  point  x^.  In  that 
case  the  right  contended  for  was  denied  on  the  principle  applicable 


512  SUB-SURFACE    RIGHTS. 

to  end  and  side  lines.     In  this  case  the  right  contended  for  must  be 
denied  by  the  apphcation  of  the  same  principle. 

But,  appellant  asks,  admitting  for  the  argument's  sake  that  it  (the 
line  g-h)  does  constitute  an  end  line  of  the  location,  within  the  mean- 
ing of  the  law  of  May  lO,  1872,  does  it  constitute  the  end  line  of  the 
Contact  vein?  And  in  answering  the  question  he  says:  "The  end 
line  of  a  lode  is  the  boundary  line  which  crosses  it,  regardless  of 
whether  it  was  originally  intended  as  an  end  line  or  side  line.  Four 
times  has  this  principle  been  sustained  by  this  court."  He  then  cites 
the  cases  we  have  cited,  and  claims  that  they  "are,  of  course,  con- 
clusive of  this  controversy,  if  they  are  in  point." 

Under  the  law  of  1866  a  patent  could  be  issued  for  only  one  vein. 
14  Stat.  251.  The  act  of  1872  gave  to  all  locations  theretofore  made, 
as  well  as  to  those  thereafter  made,  all  veins,  lodes,  and  ledges,  the 
top  or  apex  of  which  lie  inside  of  the  surface  lines.  Section  3  of  the 
act,  which  is  also  section  2322  of  the  Revised  Statutes,  is  as  follows : 

"The  locators  of  all  mining  locations  heretofore  made,  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode  or  ledge,  situated 
on  the  public  domain,  their  heirs  and  assigns,  where  no  adverse 
claim  exists  on  the  tenth  day  of  May,  eighteen  hundred  seventy- 
two,  so  long  as  they  comply  with  the  laws  of  the  United  States,  and 
with  state,  territorial  and  local  regulations  not  in  conflict  with  the 
laws  of  the  United  States  governing  their  possessory  title,  shall  have 
the  exclusive  right  of  possession  and  enjoyment  of  all  the  surface 
included  within  the  lines  of  their  locations,  and  of  all  veins,  lodes  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface  lines  extended  downward  vertically,  although 
such  veins,  lodes  or  ledges  may  so  far  depart  from  a  perpendicular 
in  their  course  downward  as  to  extend  outside  the  vertical  side  lines 
of  such  surface  locations.  But  their  right  of  possession  to  such  out- 
side parts  of  such  veins  or  ledges  shall  be  confined  to  such  portions 
thereof  as  lie  between  vertical  planes  drawn  downward,  as  above 
described,  through  the  end  lines  of  their  locations,  so  continued  in 
their  own  direction  that  such  planes  will  intersect  such  exterior  parts 
of  such  veins  or  ledges.  And  nothing  in  this  section  shall  authorize 
the  locator  or  possessor  of  a  vein  or  lode  which  extends  in  its  down- 
ward course  beyond  the  vertical  lines  of  his  claim  to  enter  upon  the 
surface  of  a  claim  owned  or  possessed  by  another."  Act  May  10, 
1872,  §  3  (Rev.  St.  U.  S.  §  2322). 

Appellant's  right  upon  the  Contact  vein  is  given  by  this  statute. 
What  limits  this  right  extralaterally  ?  The  statute  says,  vertical 
planes  drawn  downward  through  the  end  lines  of  the  location.  What 
end  lines  ?  Those  of,  and  as  determined  by,  the  original  location  and 
lode,  the  circuit  court  of  appeals  decided.  Those  determined  by  the 
direction  of  the  newly-discovered  lodes,  regardless  of  whether  they 
were  originally  intended  as  end  lines  or  side  lines,  the  appellant,  as 
we  have  seen,  contends.    The  court  of  appeals  was  right.    Against 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  513 

the  contention  of  appellant  the  letter  and  spirit  of  the  statute  oppose, 
and  against  it  the  decisions  of  this  court  also  oppose. 

The  language  of  the  statute  is  that  the  ''outside  parts"  of  the  veins 
or  ledges  "shall  be  confined  to  such  portions  thereof  as  lie  between 
vertical  planes  drawn  downwards  *  *  *  through  the  end  lines 
of  their  locations.  *  *  *"  And  Mr.  Justice  Field,  speaking  for 
the  court,  said  in  Iron-Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting 
Co.,  1 18  U.  S.  196-198,  6  Sup.  Ct.  1 183 : 

"The  provision  of  the  statute  that  the  locator  is  entitled,  through- 
out their  entire  depth,  to  all  the  veins,  lodes,  or  ledges,  the  top  or 
apex  of  which  lies  inside  of  the  surface  Unes  of  his  location,  tends 
strongly  to  show  that  the  end  lines  marked  on  the  ground  must  con- 
trol. It  often  happens  that  the  top  or  apex  of  more  than  one  vein 
lies  within  such  surface  lines,  and  the  veins  may  have  different 
courses  and  dips  ;  yet  his  right  to  follow  them  outside  of  the  side 
lines  of  the  location  must  be  bounded  by  planes  drawn  vertically 
through  the  same  end  lines.  The  planes  of  the  end  lines  cannot  be 
drawn  at  a  right  angle  to  the  courses  of  all  the  veins,  if  they  are  not 
identical." 

The  court,  however,  did  not  mean  that  the  end  lines,  called  such 
by  the  locator,  were  the  true  end  lines,  but  those  which  "are  cross- 
wise of  the  general  course  of  the  vein  on  the  surface." 

This  court,  in  Del  Monte  Mining  &  Milling  Co.  v.  Last  Chance 
Mining  &  Milling  Co.  (decided  at  the  present  term)  i8  Sup.  Ct.  895, 
reviewed  the  cases  we  have  cited  ;  and,  speaking  for  the  court,  Mr. 
Justice  Brewer  said : 

"Our  conclusion  may  be  summed  up  in  these  propositions :  First, 
the  location  as  made  on  the  surface  by  the  locator  determines  the 
extent  of  rights  below  the  surface ;  second,  the  end  lines,  as  he  marks 
them  on  the  surface,  with  the  single  exception  hereinafter  noticed, 
place  the  limits  beyond  which  he  may  not  go  in  the  appropriation  of 
any  vein  or  veins  along  their  course  or  strike ;  third,  every  vein,  'the 
top  or  apex  of  which  lies  inside  of  such  surface  lines  extended  down- 
ward vertically,'  becomes  his  by  virtue  of  his  location,  and  he  may 
pursue  it  to  any  depth  beyond  his  vertical  side  lines,  although  in  so 
doing  he  enters  beneath  the  surface  of  some  other  proprietor ;  fourth, 
the  only  exception  to  the  rule  that  the  end  lines  of  the  location,  as 
the  locator  places  them,  establish  the  limits  beyond  which  he  may 
not  go  in  the  appropriation  of  a  vein  on  its  course  or  strike,  is  where 
it  is  developed  that  in  fact  the  location  has  been  placed,  not  along, 
but  across,  the  course  of  the  vein.  In  such  case  the  law  declares  that 
those  which  the  locator  called  his  side  lines  are  his  end  lines,  and 
those  which  he  called  end  lines  are  in  fact  side  lines ;  and  this,  upon 
the  proposition  that  it  was  the  intent  of  congress  to  give  to  the  lo- 
cator only  so  many  feet  of  the  length  of  the  vein,  that  length  to  be 
bounded  by  the  lines  which  the  locator  has  established  of  his  loca- 
tion.   Our  laws  have  attempted  to  establish  a  rule  by  which  each 

ZZ — Mining  Law 


514  SUB-SURFACE    RIGHTS. 

claim  shall  be  so  many  feet  of  the  vein,  lengthwise  of  its  course,  to 
any  depth  below  the  surface,  although  laterally  its  inclination  shall 
carry  it  ever  so  far  from  a  perpendicular."  Mining  Co.  v.  Tarbet, 
98  U.  S.  463-468. 

These  propositions  we  affirm,  with  the  addition  that  the  end  lines 
of  the  original  veins  shall  be  the  end  lines  of  all  the  veins  found 
within  the  surface  boundaries. 

The  appellant  contends  that  by  agreement,  by  acquiescence,  and 
'by  estoppel,  the  line  f-g  has  become  the  end  line  between  the  two 
claims. 

This  contention  is  attempted  to  be  supported  by  (a)  a  relocation  of 
the  New  Years  Extension  claim,  by  which,  it  is  asserted,  it  recog- 
nized and  designated  the  line  f-g  as  the  northerly  end  line  of  the 
Providence  claim;  (b)  the  testimony  of  the  superintendent  as  to 
what  took  place  between  him  and  the  directors  before  sinking  the 
Champion  shaft,  and  afterwards  between  him  and  a  co-tenant  of 
complainant  ( appellant ) . 

(a)  The  relocation  does  not  in  terms  recognize  the  line  f-g  as  the 
northern  end  line  of  the  Providence.   Its  recitals  are : 

"And  whereas,  part  of  this  claim,  as  originally  described,  and  as 
hereby  relocated,  conflicts  v/ith  the  rights  granted  by  the  letters  pat- 
ent of  said  I'rovidence  mine,  said  lot  No.  40:  Now,  therefore,  so 
much  of  this  claim,  both  for  lode  and  surface  ground,  as  originally 
designated,  conflicting,  or  now  conflicts,  with  any  portion  of  the  sur- 
face or  lode,  claims  or  rights,  granted  by  said  patent,  is  and  are 
hereby  abandoned. 

"Which  portion  of  this  claim  so  abandoned  is  described  as  follows : 
All  that  portion  of  the  above-described  New  Years  Extension  claim 
for  surface  and  lode  which  lies  south  of  the  northern  boundary  line 
of  said  Providence  mine,  which  runs  north,  43  degrees  10  minutes 
east,  across  the  southeastern  corner  of  this  claim." 

It  will  be  observed,  by  reference  to  Fig.  i,  that  the  northern  boun- 
dary of  the  Providence  is  not  one  line,  but  two  lines,  and  it  is  the 
one  which  runs  north,  43°  10'  east,  across  the  southern  corner,  which 
is  designated  in  the  relocation  of  the  New  Years  claim. 

In  the  notice  of  relocation,  however,  the  northerly  line  of  the 
Providence  is  called  the  south  end  line  of  the  relocated  ground.  The 
description  is  as  follows : 

"The  lode  line  of  this  claim,  as  originally  located,  and  which  I 
hereby  relocate,  is  described  as  follows :  Commencing  at  a  point  on 
the  northerly  bank  of  Deer  creek,  which  point  is  80  feet  S.,  11  deg. 
45  minutes  east,  of  the  mouth  of  the  New  Years  tunnel,  and  running 
thence  along  the  line  of  the  lode  towards  the  N.  E.  corner  of  the 
Providence  mill  about  S.,  46  deg.  15  minutes  east,  200  feet,  more 
or  less,  to  a  point  and  stake  on  the  northerly  line  of  the  Providence 
mine,  patented,  designated  as  'Mineral  Lot  No.  40,'  for  the  south 
end  of  said  lode  line,  and  that  the  Contact  vein  crosses  in  its  onward 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  515 

course  the  southerly  end  Hne  of  said  New  Years  Extension  claim, 
and  enters  the  lands  and  premises  of  plaintiff  described  in  said  bill 
of  complaint." 

It  is  hence  contended  that,  if  the  line  f-g  is  the  southerly  end  line 
of  the  New  Years  Extension,  it  must  necessarily  be  the  northern  end 
line  of  the  Providence  mine.  This  does  not  follow,  nor  is  there  any 
concession  of  it.  Coincidence  of  lines  between  claims  does  not  make 
them  side  lines  or  end  lines.  Whether  they  shall  be  so  regarded  de-. 
pends  upon  the  legal  considerations,  which  we  have  already  suffi- 
ciently entered  into,  and  need  not  repeat.  We  do  not  say  that  there 
may  not  be  an  agreement  settling  end  lines.  One  example  of  such 
an  agreement  was  exhibited  in  Richmond  Min.  Co.  v.  Eureka  Min. 
Co.,  103  U.  S.  839. 

(b)  The  testimony  relied  on  was  admitted  against  the  objection 
of  defendants  (appellees).     *     *     * 

This  testimony  does  not  establish  an  equitable  estoppel,  nor  is  the 
corporation  bound  by  the  declarations  of  the  superintendent.  They 
were  without  the  scope  of  his  agency  or  authority. 

2.  The  right  to  that  portion  of  the  Contact  ledge  within  the  boun- 
daries of  the  parallelogram  h-i-k-h^  presents  an  interesting  question. 
It  does  not  appear  to  have  been  submitted  to  either  of  the  lower 
courts,  but  the  right  by  the  decree  of  the  circuit  court  is  given  to 
appellee,  by  adjudging  to  it  that  portion  of  the  vein  on  its  dip  which 
lies  northeasterly  of  the  line  g-h  and  its  continuation. 

The  question  is  a  new  one  in  this  court,  but  we  think  it  is  deter- 
mined by  the  principles  hereinbefore  laid  down.  It  may  be  true  that 
under  the  act  of  1866  the  patenting  of  the  Providence  mine  in  its  ir- 
regular shape  was  in  all  respects  legal  and  proper,  and  that  the  act 
did  not  require  the  location  to  be  made  in  the  form  of  a  parallelo- 
gram, or  in  any  particular  form,  and  that  there  was  no  requirement 
that  the  end  lines  should  be  parallel.  It  is  also  true  that  under  that 
act  only  one  vein  could  be  included  in  a  location,  no  matter  how 
much  surface  ground  was  included  in  the  patent,  but  that  under  the 
act  of  1872  possession  and  enjoyment  of  all  the  surface  included 
within  the  lines  of  their  location,  and  of  all  veins,  lodes,  and  ledges 
throughout  the  entire  depth,  the  top  or  apex  of  which  lies  inside  of 
such  surface  lines  extended  downward  vertically,  were  given. 

But  rights  on  the  strike  and  on  the  dip  of  the  original  vein,  and 
rights  on  the  strike  and  on  the  dip  of  the  other  veins,  we  have  de- 
cided, are  determined  by  the  end  lines  of  the  location.  In  other 
words,  it  is  the  end  lines  alone,  not  they  and  some  other  lines,  which 
define  the  extralateral  right;  and  they  must  be  straight  lines,  not 
broken  or  curved  ones.  The  appellant,  under  his  contention,  would 
get  the  right  such  lines  would  give  him,  and  something  more,  besides, 
outside  of  them.  To  specialize,  he  would  get  all  within  a  plane  drawn 
through  the  line  g-h,  and  all  within  the  planes  drawn  through  the 
sides  of  the  parallelogram  h-i-k-h^,  Fig.  i. 


5l6  SUB-SURFACE    RIGHTS. 

It  may  be  that  the  end  lines  need  not  be  parallel,  under  the  act  of 
1866;  may  converge  or  diverge ;  and  may  even  do  so  as  to  new  veins, 
— of  which,  however,  we  express  no  opinion.  But  they  must  be 
straight.  No  other  lines  define  planes  which  can  be  continuous  in 
their  own  direction,  within  the  meaning  of  the  statute.  It  may  be 
that  there  was  liberty  of  surface  form  under  that  act,  but  the  law 
strictly  confined  the  right  on  the  vein  below  the  surface.  There  is 
liberty  of  surface  form  under  the  act  of  1872.  It  was  exercised  in 
Iron-Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co.,  supra,  in 
the  form  of  a  horseshoe ;  in  Montana  Co.  v.  Clark,  42  Fed.  626,  in 
the  form  of  an  isosceles  triangle. 

The  decree  is  affirmed.^" 


COSMOPOLITAN  MIN.  CO.  v.  FOOTE  et  al. 
1900.     Circuit  Court,  D.  Nevada,     ioi  Fed.  518. 

In  Equity.  Suit  to  determine  the  rights  of  owners  of  adjoining 
mining  claims. 

Hawley,  District  Judge. — Complainant  is  the  owner  of  the  Cos- 
mopolitan patented  mining  claim,  1,000  feet  in  length  and  600  feet 
in  wadth,  situate  in  Gold  Hill  mining  district,  Storey  county,  Nev. 
The  patent  was  issued  in  October,  1873.  Defendant  Lottie  Foote  is 
the  owner  of  a  mining  claim  and  location  situate  in  the  same  mining 
district,  immediately  west  of  the  Cosmopolitan,  and  called  the 
"Badger."  There  is  no  controversy  in  relation  to  the  surface  lines 
of  the  Cosmopolitan  claim.  The  complainant  claims  that  there  is  a 
lode  bearing  mineral  in  the  Cosmopolitan  claim  near  its  westerly  side 
line,  having  a  northerly  and  southerly  course,  with  a  dip  to  the  east, 
and  that  the  apex  of  this  lode  is  within  the  Cosmopolitan  surface 
location,  except  for  a  distance  of  a  few  feet,  where  a  very  small  part 

^  See  an  article  on  the  principal  case  by  Mr.  John  M.  Zane  in  16  Harv.  Law- 
Rev.  94.  In  connection  with  that  article  should  be  noted  Mr.  Lindley's  subse- 
quent explanation  of  the  failure  of  the  Champion  Company  to  appeal,  namely: 

"No  cross  appeal  was  taken  by  the  Champion  Company  to  either  of  the 
appellate  courts  for  economic  reasons.  All  of  the  vein  within  the  New  Year's 
and  New  Year's  Extension  claims  north  of  the  plane  f-g  had  been  worked  out 
years  before  the  litigation  arose.  There  was  nothing  of  value  there  to 
justify  litigation.  The  narrow  strip  of  ground  between  the  plane  claimed  by 
the  Champion,  v-v\  and  the  one  fixed  bv  the  court,  g-h-h\  did  not  embrace 
the  ore  'shoot'  and  was  practically  valueless.  The  valuable  ore  bodies  over 
which  the  litigation  arose,  and  which  alone  engaged  the  attention  of  either 
courts  or  litigants,  were  within  the  triangle  formed  by  the  line  g-h-h^  and  the 
one  claimed  by  the  Providence,  f-g-g^.  The  only  object  to  be  gained  by 
prosecuting  a  cross-appeal  would  have  been  to  secure  the  establishment  of  a 
principle  to  be  followed  in  other  cases." — 2  Lindley  on  Mines,  2  ed.,  p.  1043, 
§  593,  note. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  51/ 

of  it  extends  over  the  surface  line  into  the  Badger  from  5  to  15  feet, 
more  or  less.  The  lode,  as  claimed  by  complainant,  is  in  two  branches 
at  the  southerly  end,  each  branch  being  from  30  to  50  feet  wide,  and 
which,  going  north,  unite  in  one  vein,  from  60  to  100,  or  more,  feet 
wide.  '  The  defendants  claim  there  is  a  lode  near  the  east  side  line  of 
the  Badger,  having  its  course  north  and  south  along  the  entire  length, 
with  a  hanging  and  foot  wall,  wholly  within  the  Badger  surface  lines. 
The  contest  between  the  parties  is  in  relation  to  the  apex  of  the  re- 
spective lodes,  and  upon  that  question  a  mass  of  evidence  has  been 
submitted  by  the  respective  parties.  There  is  a  decided  conflict  in  the 
evidence  upon  this  point. 

In  the  year  1875  some  work  was  done  by  the  complainant  in  run- 
ning an  upper  and  lower  tunnel  into  the  Cosmopolitan  ground.  The 
mouth  of  the  upper  tunnel  commenced  near  a  point  where  a  black- 
smith shop  was  afterwards  erected,  about  100  feet  southwesterly 
from  the  southwest  corner  of  the  Cosmopolitan  claim.  This  tunnel 
runs  in  a  northeasterly  direction  a  distance  of  about  400  feet  through 
the  Cosmopolitan  claim.  At  a  point  about  100  feet  from  its  face  the 
tunnel  makes  a  turn,  and  runs  more  in  a  northwesterly  direction. 
This  tunnel  was  constructed  by  the  complainant.  Leases  and  licenses 
were  at  different  times  from  1894  to  1898  given  to  different  parties 
to  work  therein  and  take  ore  therefrom.  The  rails  in  the  tunnel,  and 
cars  to  convey  the  ore,  were  supplied  and  paid  for  by  the  complain- 
ant. During  the  years  1895  and  1896  the  Footes.  father  and  sons, 
made  several  applications  to  Mr.  Landers,  the  president  of  the  Cos- 
mopolitan Company,  for  the  privilege  of  taking  ore  out  of  the  Cos- 
mopolitan claim  through  this  tunnel.  None  was  ever  given  them.  Mr. 
Staricha  in  1895,  under  a  lease  from  complainant,  extended  the  tun- 
nel and  took  out  ore  from  the  stope  called  the  "Staricha  Stope,"  dis- 
tant about  100  feet  from  the  southerly  line  of  the  Cosmopolitan  mine. 
In  1896  an  incline  from  this  stope  was  opened  out  to  the  surface, 
and  came  out  near  to,  but  west  of,  the  westerly  line  of  the  Cosmopol- 
itan claim.  Around  this  stope  and  incline,  and  the  character  of  the 
earth,  rock,  and  other  material  found  therein,  cluster  the  most  impor- 
tant facts  upon  which  each  of  the  parties  relies  to  prove  where  the 
apex  is  found.  In  1898  the  defendants  entered  into  the  tunnel,  took 
possession  thereof,  and  excluded  complainant  therefrom,  and  at  or 
near  the  face  thereof  stoped  out  a  large  quantity  of  ore,  and  were  so 
engaged  at  the  time  of  the  commencement  of  this  suit,  and  continued 
to  work  thereon  for  some  time  thereafter.  At  the  trial  the  conten- 
tion of  the  defendants  was  that  the  ore  thus  taken  out  belongs  to  a 
lode  which  has  its  apex  within  the  surface  lines  of  the  Badger  claim, 
and  that  they  have  the  right  to  follow  said  lode  in  its  downward 
course  into  the  Cosmopolitan  ground,  although  there  may  have  been  a 
mistake  made  in  locating  the  ledge. 


5l8  SUB-SURFACE    RIGHTS. 

The  Bad,c;-er  is  a  relocation,  made  in  1884.    The  notice  of  relocation 
reads  as  follows : 

"Location  Notice.  Badger  Mine. 
"Notice  is  hereby  given  that  I,  the  undersigned,  have  this  day  relocated 
1,000  feet  of  the  south  end  of  the  Badger  mine  &  500  feet  of  the  north  end  of 
the  Margarita  mine,  in  Storey  county,  Nevada,  for  mining  purposes.  This 
location  is  made  subject  to  the  mining  laws  of  the  United  States  and  the 
state  of  Nevada.  My  residence  is  Silver  City,  Lyon  county,  Nevada,  and  am 
a  citizen  thereof.  The  said  mine  is  situated  in  Negro  ravine,  adjoining  the 
Flora  Temple  on  the  north,  and  west  of  the  Cosmopolitan  mines.  July  14th, 
1884.     This  claim  shall  be  known  as  the  'Badger  Mine.'  George  Foote." 

At  the  time  this  location  notice  was  posted  there  was  a  lode  ex- 
posed within  the  surface  lines  of  the  location,  running  in  an  easterly 
and  westerly  direction.  The  rights  of  the  defendants  are  based 
solely  upon  this  relocation.  If  it  was  made  upon  a  lode  running  in 
an  easterly  and  westerly  direction,  then  the  side  lines  marked  on  the 
surface  as  such  would  become,  in  the  eye  of  the  law,  the  end  lines  of 
the  location,  and  the  end  lines  marked  on  the  surface  would  become 
the  side  lines  of  the  claim.  The  testimony  concerning  the  relocation 
is  very  meager.  Mr.  Foote  testified  :  That  he  made  the  relocation 
on  a  lode  running  in  a  northerly  and  southerly  direction.  That  he 
placed  the  location  notice  at  or  near  the  center  of  the  surface  claim, 
and  at  a  point  marked  "O"  on  the  map.  That  ore  was  disclosed  at 
that  point.  That  there  was  a  hole  dug  about  350  feet  northerly  from 
that  point,  which  disclosed  ore,  and  another  one  at  a  point  about  750 
feet  southerly  from  the  location  point.  At  the  point  of  location  there 
is  a  cut  6  or  7  feet  long,  2  feet  wide,  and  i  foot  deep  in  vein  matter. 
The  hole  towards  the  north  line  of  the  Badger  is  an  opening  5  feet 
wide  and  15  feet  in  length,  in  which  ore  is  exposed.  The  hole  to- 
wards the  southern  line  of  the  Badger  is  2  feet  square  and  i  foot 
deep,  and  is  in  solid  country  rock.  The  testimony  in  rebuttal  was  to 
the  effect  that  the  character  of  the  ground  between  the  hole  at  the 
north  and  the  location  point  was  in  solid  country  rock.  The  witness 
Wrinkle  said :  Part  of  the  country  "is  covered  by  surface  dirt,  but 
quite  a  large  stretch  is  exposed,  and  it  is  solid  country  rock."  The 
same  is  true  of  the  ground  between  the  location  point  and  the  hole  at 
the  southerly  end  of  the  claim.  The  witness  said,  "Wherever  the 
ground  is  laid  bare, — no  surface  dirt  covering  it, — it  is  nothing  but 
country  rock."  The  same  witness,  speaking  with  reference  to  the 
explorations  in  the  Badger  tunnel,  testified  as  follows : 

"Q.  State  whether  or  not  any  other  vein  appears  in  that  tunnel,  except  the 
one  that  you  have  shown  on  the  map, — any  vein  running  northerly  and  south- 
erly. A.  No;  there  is  not.  *  *  *  Q.  State  whether  or  not  any  vein  run- 
ning northerly  or  southerly  is  shown  in  that  tunnel.  A.  No.  Q.  What  indi- 
cations are  there,  if  any,  on  the  surface  between  the  opening  shown  to  you 
near  the  north  line,  200  feet  from  it,  and  the  location  point,  or  the  location 
point  and  the  opening   150  feet  or  so   from  the  south  line  of  the   Badger, — 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  519 

what  indication  between  those  points  of  any  vein  whatever?     A.   There   are 
none." 

There  are  surrounding  circumstances  in  connection  with  the  testi- 
mony upon  this  point  as  to  the  course  of  the  lode  that  ought  not  to 
be  overlooked.     No  attempt  was  made  upon  the  part  of  the  defend- 
ants, except  by  the  testimony  of  Mr.  Foote,  to  establish  the  fact  of 
the  existence  of  any  lode  running  northerly  and  southerly  from  the 
location  point,  which  was  and  is  of  as  much  importance  as  the  estab- 
lishment of  the  existence  of  a  lode  running  in  that  direction  near  the 
easterly  line  of  the  Badger  claim.    There  is  no  pretense  that  the  re- 
location was  made  upon'the  lode  in  dispute  at  the  easterly  line  of  the 
Badger  location,  or  that  there  is  any  possible  connection  between  that 
lode  and  the  one  located  by  Mr.  Foote.    The  defendants'  contention 
seems  to  be  that  because,  as  they  claim,  they  have  subsequently  dis- 
covered the  apex  of  a  lode  running  northerly  and  southerly  at  the 
easterly  line  of  their  surface  location,  they  have  a  right  to  follow  that 
lode  in  its  dip  underneath  the  Cosmopolitan  claim,  without  any  re- 
gard to  the  direction  or  course  of  the  lode  located  by  Foote.    But  that 
right,  in  law\  depends  upon  the  fact  whether  what  are  marked  on  the 
ground  as  the  side  lines  of  the  location  are  in  fact  the  side  lines ;  and 
to  determine  that  question  we  must  look  exclusively  to  the  location, 
and  find  out  what  the  defendant  Foote  located,  because,  if  he  located 
upon  a  lode  that  he  thought  had  a  northerly  and  southerly  course, 
and  made  his  relocation  accordingly,  and  the  stibsequent  develop- 
ments proved  that  the  locator  was  mistaken  in  the  course  of  the  lode, 
he  would  be  bound  by  his  own  mistake^  and  governed  and  controlled 
in  his  rights  by  the  facts  as  they  are  shown  to  exist,  instead  of  what 
he  thought  existed  at  the  time  the  location  was  made.   The  testimony 
given  by  the  locator  is  wholly  insufficient  to  show  that  any  lode, 
ledge,  or  vein  had  been  discovered  by  him,  or  the  prior  locators  of 
the'  gi-ound,  having  a  northerly  or  southerly  course  at  the  point  of 
location.    When  the  entire  testimony  is  taken  into  consideration,  it  is 
made  manifest  that  no  such  ledge  exists,  or  at  least  that  none  has 
ever  been  discovered.     The  point  of  the  relocation  where  the  notice 
was  posted  was  near  to  a  well-defined  lode,  called  by  some  of  the 
witnesses  the  "Badger,"  and  by  others  the  "Margarita,"  which  has  a 
course  clearly  defined  in  an  easterly  and  westerly  direction,  and  tipon 
which  the  Footes  have  been  at  work  for  years.     No  claim  that  his 
location  was  made  upon  a  lode  running  north  and  south  seetiis  ever 
to  have  been  made  by  the  locator  prior  to  the  time  of  the  trial,  nor 
until  after  complainants'  counsel  had  publicly  stated  that  the  reloca- 
tion of  the  Badger  was  made  upon  a  lode  running  east  and  west,  and 
that  the  locator's  side  lines  would  be  his  end  lines,  and  cut  ofif  his 
extralateral  rights  in  that  direction.    Foote  testified  that  he  had  never 
informed  his  counsel  to  that  effect,  nor  had  he  given  any  such  infor- 
mation to  the  surveyor  employed  by  the  defendants.    But,  whatever 


520  SUB-SURFACE    RIGHTS. 

his  claim  may  have  been, — whatever  his  intentions  were, — the  fact 
remains  that  the  relocation  was  absolutely  made  upon  a  lode  which 
runs  more  east  and  west  than  north  and  south  ;  and  the  law  steps  in 
and  declares  that  his  legal  rights  under  this  location  must  be_  deter- 
mined by  calling  what  lie  marked  as  the  side  lines  the  end  lines  of 
his  location.  This  being  true,  it  follows  that  he  is  not  entitled  to  any 
e-xtralateral  rights  beyond  his  end  line  along  the  western  side  line  of 
the  Cosmopolitan.  The  law  upon  this  point  is  well  settled.  The  prin- 
ciples which  govern  and  control  this  question  were  first  announced 
bv  the  supreme  court  in  Minnig  Co.  v.  Tarbet,  98  U.  S.  463,  25  L. 
Ed.  253,  affirmed  in  Argentine  Min.  Co.  v.  Terrible  Min.  Co.,  122 
U.  S.  478,  485,  7  Sup.  Ct.  1356,  30  L.  Ed.  1 140,  and  followed  in  Del 
Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55,  86,  89,  18  Sup.  Ct.  895, 
43  L.  Ed.  72,  and  Walrath  v.  Mining  Co.,  171  U.  S.  293,  307,  18  Sup. 
Ct.  909,  43  L.  ed.  170.  See.  also,  Iron  Silver  Min.  Co.  v.  Elgin 
Mining  &  Smelting  Co.,  118  U.  S.  196,  208,  6  Sup.  Ct.  1177,  30  L. 
Ed.  98;  King  v.  Mining  Co.,  152  U.  S.  222,  228,  14  Sup.  Ct.  510,  38 
L.  Ed.  4i9;"Wyoming  Min.  Co.  v.  Champion  Min.  Co.  (C.  C.)  63 
Fed.  540;  Walrath  v. 'Mining  Co.  (C.  C.)  63  Fed.  552,  557;  2  Lindl 
Mines,  §  586  et  seq.  Numerous  other  authorities  will  be  found 
cited  in  the  cases  here  referred  to. 

In  Argentine  Min.  Co.  v.  Terrible  Min.  Co.,  supra,  the  court,  in 
discussing  this  question,  said  : 

"When,  therefore,  a  mining  claim  crosses  the  course  of  the  lode  or  vein, 
instead  of  being  'along  the  vein  or  lode,'  the  end  lines  are  those  which 
measure  the  width  of  the  claim  as  it  crosses  the  lode.  Such  is  evidently  the 
meaning  of  the  statute.  The  side  lines  are  those  which  measure  the  extent 
of  the  claim  on  each  side  of  the  middle  of  the  vein  at  the  surface.  Such  is 
the  purport  of  the  decision  in  Mining  Co.  v.  Tarbet,  98  U.  S.  463,  25  L.  Ed. 
253  The  court  there  said,  referring  to  the  statute  of  1866  (14  Stat.  251)  and 
that  of  1872  (17  Stat.  91)  :  'We  think  that  the  intent  of  both  statutes  is  that 
mining  locations  on  lodes  or  veins  shall  be  made  thereon  lengthwise,  in  the 
general  direction  of  such  veins  or  lodes  on  the  surface  of  the  earth  where 
they  are  discoverable,  and  that  the  end  lines  are  to  cross  the  lode  and  extend 
perpendicularly  downward,  and  to  be  continued  in  their  own  direction  either 
way  horizontally,  and  that  the  right  to  follow  the  dip  outside  of  the  side  lines 
is  based  on  the  hypothesis  that  the  direction  of  these  lines  corresponds  sub- 
stantially with  the  course  of  the  lode  or  vein  at  its  apex  on  or  near  the 
surface.  It  was  not  the  intent  of  the  law  to  allow  a  person  to  make  his 
location  crosswise  of  the  vein,  so  that  the  side  lines  shall  cross  it,  and  thereby 
give  him  the  right  to  follow  the  strike  of  the  vein  outside  of  his  side  lines. 
That  would  subvert  the  whole  system  sought  to  be  established  by  the  law. 
If  he  does  locate  his  claim  in  that  way,  his  rights  must  be  subordinated  to  the 
rights  of  those  who  have  property  located  on  the  lode.'  And  agam  that  the 
end  lines  of  the  claim,  properly  so  called,  are  'those  which  arc  crosswise  of 
the  general  course  of  the  vein  on  the  surface.'  Such  being  the  law,  the  lines 
which  separate  the  location  of  the  plaintiff  below  from  the  location  of  the 
defendant  are  end  lines,  across  which,  as  they  are  extended  downward  verti- 
cally, the  defendant  cannot  follow  a  vein,  even  if  its  apex  or  outcropping  is 
within  its  surface  boundaries,  and,  as  a  consequence,  could  not  touch  the 
premises  in  dispute,  which  are  conceded  to  be  outside  of  those  lines,  and  out- 
side of  vertical  planes  drawn  downward  through  them." 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  521 

In  Wyoming  Min.  Co.  v.  Champion  Alin.  Co.  (C.  C.)  63  Fed.  540, 
548,  I  said : 

"The  statute  should  be  so  construed  as  to  give  to  the  locator  what  he  ac- 
tually locates, — no  more  and  no  less.  *  *  *  He  is  admonished  by  the  law 
that  he  will  be  limited  in  the  length  of  his  lode  upon  its  strike  to  such  portion 
as  is  within  the  surface  lines  of  his  location,  but  he  is  at  the  same  time  assured 
that  he  will  not  be  limited  or  deprived  of  his  extralateral  rights  as  to  the 
depth  of  such  lode,  upon  its  dip,  the  apex  of  which  is  within  the  surface  lines 
of  his  location.  The  statute  of  1872  gives  to  locators  of  mining  claims  'the 
exclusive  right  of  possession  and  enjoyment  of  all  the  surface  included  within 
the  lines  of  their  locations,  and  of  all  veins,  lodes  or  ledges,  throughout  their 
entire  depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically,  although  such  veins,  lodes  or  ledges  may  so  far 
depart  frcm  a  perpendicular  in  the  course  downward  as  to  extend  outside  the 
vertical  side  lines  of  such  surface  locations.*  These  are  their  extralatei'al 
rights,  which  should  neither  be  extended  nor  restricted  by  the  courts.  *  *  * 
One  general  principle  should  pervade  and  control  the  various  conditions  found 
to  exist  in  different  locations,  and  its  guiding  star  should  be  to  preserve  in  all 
cases  the  essential  right  given  by  the  statute  to  follow  the  lode  upon  its  dip, 
as  well  as  upon  its  strike,  to  so  much  thereof  as  its  apex  is  found  within  the 
surface  lines  of  the  location.  If  the  lode  runs  more  nearly  parallel  with  the 
end  lines  than  with  the  side  lines  as  marked  on  the  ground  as  such,  then  the 
end  lines  of  the  locations  must  be  considered  by  the  courts  as  the  side  lines 
meant  by  the  statute.  If  the  lode  runs  more  nearly  parallel  with  the  side 
lines  than  with  the  end  lines,  then  the  end  lines,  as  marked  on  the  ground,  are 
considered  by  the  court  as  the  end  lines  of  the  location.  In  both  cases  the 
extralateral  rights  are  preserved  and  maintained  as  defined  in  the  statute." 

Still  more  directly  in  point  are  the  views  expressed  by  myself  in 
Walrath  v.  Mining  Co.  (C.  C.)  63  Fed.  552,  557: 

"The  act  of  1872,  in  granting  all  other  veins  that  were  within  the  surface 
lines  of  previous  locations,  did  not  create  any  new  lines  for  such  other  veins, 
nor  invest  the  court  with  any  authority  to  make  new  end  lines  for  such  other 
veins.  And  it  is  apparent  from  an  examination  of  the  statute  that  the  court 
has  no  power  to  make  a  new  location  for  every  vein  that  may  be  found  within 
the  surface  lines  of  the  location,  and  thereby  enlarge  the  rights  of  the  original 
locators.  When  the  end  lines  of  a  mining  location  are  once  fixed,  they  bound 
the  extralateral  rights  to  all  lodes  that  are  thereafter  found  within  the 
surface  lines  of  the  location.  It  necessarily  follows  that  the  end  lines  of  the 
Providence  [Badger]  survey  must  be  considered  by  the  court  as  the  end  lines 
of  any  and  all  other  lodes  or  veins  which  lie  'inside  of  such  surface  lines'; 
otherwise,  endless  confusion  would  arise  in  the  construction  of  the  statute. 
End  lines  would  have  to  be  constructed  in  different  directions  if  the  separate 
lodes  or  veins  found  within  the  surface  lines  did  not  run  parallel  with  each 
other,  and  the  result  would  be  that  these  lines,  extended,  might  give  to  the 
owner  of  the  claims  a  greater  length  along  the  lode  as  it  extended  downward 
than  they  had  upon  the  surface." 

These  views  are  conclusive  as  to  the  present  controversy  between 
the  parties.  They  apply  as  well  to  the  "dumping  ground"  claimed 
by  the  complainant  as  to  the  lode  within  the  surface  boundaries  of 
the  Cosmopolitan  claim.  The  owner  or  owners  of  the  Badger  claim, 
under  the  location  made  by  Mr.  Foote,  can  only  claim  300  feet  on 


522  SUB-SURFACE    RIGHTS. 

each  side  of  the  middle  of  the  lode  located  by  him;-"^  and,  as  thus 
limited,  it  does  not  reach  any  part  or  portion  of  the  dumping  ground 
of  the  Cosmopolitan  Company.  They  are,  of  course,  entitled  to  all 
lodes,  ledges,  veins,  and  deposits  of  mineral-bearing  rock,  earth,  or 
ore,  the  apex  of  which  is  found  within  the  limits  of  the  Badger  lo- 
cation as  herein  defined,  but  they  are  confined  in  such  rights  to  the 
end  line  drawn  downward  vertically  along  the  westerly  side  line  of 
the  Cosmopolitan  claim.     Beyond  that  they  have  no  right  to  go. 

In  the  light  of  these  conclusions,  it  is  unnecessary  for  the  court 
to  travel  over  the  surface  ground,  pass  through  the  tunnels,  go  up 
the  stopes  or  down  into  the  winzes,  through  the  drifts  and  into  the 
cuts  and  holes,  visit  the  dump,  or  inspect  the  croppings,  and  then  test 
and  weigh  the  credibility,  strength,  and  reasonableness  of  the  testi- 
mony of  the  various  witnesses  by  legal  scales,  for  the  purpose  of  de- 
termining the  mooted  question  as  to  the  existence  or  non-existence 
of  a  lode  having  its  apex  within  the  surface  lines  of  the  Badger  claim 
west  of  and  near  to  the  Cosmopolitan  westerly  side  line.  Let  a  de- 
cree be  entered  in  favor  of  complainant. 


ST.  LOUIS  MIN.  &  MILL.  CO.  OF  MONTANA  v.  MONTANA 

MIN.  CO. 

1900.     Circuit  Court  of  Appeals.     44  C.  C.  A.  120,  104  Fed.  664. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Montana. 

This  is  an  action  originally  brought  by  the  St.  Louis  Mining  &  Milling 
Company,  a  Montana  corporation,  plaintiff  in  error,  in  the  circuit  court  of  the 
United  States  for  the  district  of  Montana,  to  recover  damages  for  trespass, 
and  the  value  of  certain  ores  alleged  to  have  been  wrongfully  appropriated  and 
taken  by  the  Montana  Mining  Company,  Limited,  a  corporation  of  Great 
Britain,  defendant  in  error.  After  trial  by  a  court  and  jury,  resulting  in  a 
verdict  for  the  plaintiff  in  error  in  the  sum  of  $23,209,  plaintiff  in  error  now 
brings  the  suit  to  this  court  upon  certain  assignments  of  error,  which,  it  al- 
leges, deprived  it  of  a  larger  verdict.  There  is  practically  no  contention  be- 
tween the  parties  as  to  the  facts.  The  plaintiff  in  error  is  the  owner  of  the 
St.  Louis  mining  claim,  situated  near  Marysville,  in  the  state  of  Montana;  and 
the  defendant  in  error  owns  the  Nine  Hour  mining  claim,  adjoining  the  St. 
Louis  claim  on  its  easterly  side.  The  St.  Louis  claim  is  the  older  location.  It 
contains  two  veins,  known  in  the  record  as  the  Discovery  vein  and  the  Drum 

^nBut  see  Harper  v.  Hall,  p.  213,  ante. 


EXTRALATERAL    RIGHTS    UNDER    ACT    lS>/2.  523 

Lummon  vein.     The  accompanying  map  gives  the  general  location  of  the  two 
claims,  and  all  details  of  description  which  need  be  considered  in  this  opinion: 


5T  Louis  CLAir^ 


By  way  of  explanation  of  the  map,  it  may  be  stated  that  the  line,  E,  C,  D, 
is  the  dividing  line  between  the  two  claims.  The  line  marked  "133-foot  plane" 
is  a  projected  line  plane  parallel  to  the  southerly  line  of  the  St.  Louis  claim, 
and  133  feet  southerly  from  the  point,  C,  on  the  line,  C,  E.  The  line  marked 
"lOS-foot  plane"  is  a  similar  plane  108  feet  from  the  said  point,  C,  and  the 
line  marked  "S20-foot  plane"  is  a  similar  plane  520  feet  southerly  from  the 
northeasterly  corner  of  the  St.  Louis  claim  on  the  line,  D,  C.  The  strip  of 
land  included  within  A,  B,  C,  E,  is  a  strip  30  feet  wide,  called  in  the  record 
the  30-foot  or  compromise  strip.  The  arrows  show  the  direction  of  the  dip 
of  the  vein  to  be  eastwardly,  and  underneath  the  Nine  Hour  claim.  The 
Discovery  vein  is  not  shown  upon  the  map,  but  it  is  established  by  the  evi- 
dence to  have  a  northeasterly  and  southwesterly  trend,  following  generally  the 
length  of  the  claim  as  located.  As  to  the  Drum  Lummon  vein,  there  is  a 
discrepancy  between  the  complaint  and  the  evidence.  The  complaint  alleges 
that  it  enters  the  easterly  line  of  the  St.  Louis  claim  at  the  point,  H,  or  the 
520-foot  plane,  and  departs  from  the  claim  at  the  133-foot  plane  at  F.  The 
evidence 'shows  a  different  state  of  facts,  to  the  extent  that  it  appears  there- 
from that  more  of  the  Drum  Lummon  vein  is  within  the  St.  Louis  claim  to 
the  north,  and  that  the  foot  wall  does  not  pass  out  of  the  St.  Louis  claim  until 
a  considerable  distance  southerly  of  the  133-foot  plane,  if  it  does  at  all.  But 
the  case  will  be  considered  as  if  the  vein  were  located  according  to  the  alle- 
gations of  the  complaint  (and  the  map  so  shows  it),  as  the  assignments  of 
error  herein  are  based  upon  such  an  assumed  state  of  facts.  Upon  the  trial 
of  the  cause,  the  plaintiff  in  error  claimed  the  right  to  pursue  the  Drum  Lum- 
mon vein  extralaterally  so  long  as  any  part  of  the  apex  of  the  vein  was  within 
the  boundaries  of  the  St.  Louis  claim.  The  defendant  in  error  denied  this 
right  in  toto,  basing  such  denial  upon  the  following  state  of  facts  :  When  the 
predecessors  in  interest  of  the  plaintiff  in  error  applied  for  a  patent  to  the  St. 
Louis  ground,  they  included  the  so-called  30-foot  strip  shown  upon  the  map  in 
the  claim.  The  owners  of  the  Nine  Hour  claim  opposed  the  issuance  of  the 
patent  so  far  as  this  strip  was  concerned,  asserting  that  it  was  a  part  of  the 
Nine  Hour  claim.  A  compromise  was  entered  into,  by  which  the  owners  of 
the  St.  Louis  claim  agreed  to  convey  to  the  owners  of  the  Nine  Hour  claim, 
upon  their  receiving  a  patent,  the  said  30-foot  strip  ;  and  this  was  afterwards 
done,  after  suit  had  been  brought  for  specific  performance  of  the  contract. 
The  defendant  in  error  claimed  that  by  this  deed,  owing  to  its  language  and 


524  SUB-SURFACE    RIGHTS. 

the  nature  of  the  transactions  leading  up  to  it,  the  plaintiff  in  error  was  fore- 
closed of  the  right  to  pursue  the  Drum  Lummon  vein  under  the  said  30-foot 
strip.  The  trial  court  permitted  evidence  of  the  value  of  ores  alleged  to  be 
appropriated  by  the  defendant  in  error  from  the  vein  as  it  passed  under  the 
Nine  Hour  claim  and  the  30-foot  strip,  between  the  520-foot  plane  and  the 
108- foot  plane,  to  go  to  the  jury,  and  charged  the  jury  that  the  effect  of  the 
proceedings  had  was  to  make  the  30-foot  strip  a  part  of  the  original  Nine 
Hotir  claim,  and  that  the  defendant  in  error  had  the  same  rights  therein,  and 
no  further  rights,  than  as  if  it  had  been  originally  patented  as  a  part  of  the 
Nine  IHour  claim,  and  further  charged  the  jury  that  the  line,  E,  C,  was  a  side 
line  common  to  the  two  claims,  and  that,  so  long  as  the  Drum  Lummon  vein 
apexed  entirely  within  the  St.  Louis  claim,  the  plaintiff  in  error  could  follow 
it  in  its  dip  under  the  Nine  Hour  claim,  including  the  30-foot  strip.  Upon  this 
the  jury  rendered  a  verdict  in  favor  of  the  plaintiff  in  error  for  the  sum  of 
$23,209.  A  writ  of  error  was  sued  out  by  the  defendant  in  error  to  this  court, 
and  this  court,  in  Montana  Min.  Co.  v.  St.  Louis  Min.  &  Mill.  Co.  (C.  C.  A.) 
102  Fed.  430,  sustained  the  lower  court  upon  these  propositions  as  submitted 
to  the  jury,  holding  the  line,  E,  C,  D,  as  shown  upon  the  map,  to  be  a  bound- 
ary line  between  the  two  claims  and  a  side  line  of  each  claim,  and  granting 
the  plaintiff'  in  error  here  the  right  of  lateral  pursuit  under  both  the  30-foot 
strip  and  the  remainder  of  the  Nine  Hour  claim.  Hence  in  this  opinion  the 
30-foot  strip  will  not  be  treated  separately,  but  will  be  regarded  as  part  and 
parcel  of  the  Nine  Hour  claim.  Upon  the  trial,  however,  the  plaintiff  in  error 
further  offered  evidence  to  show  the  value  of  ores  alleged  to  have  been  ap- 
propriated by  the  defendant  in  error,  contained  in  the  said  Drum  Lummon 
vein  between  the  108-foot  plane  and  the  133-foot  plane.  This  offer  was  made 
— First,  as  to  the  portion  of  the  vein  between  said  planes  underneath  the  30- 
foot  strip ;  and,  secondly,  as  to  the  portion  thereof  under  the  Nine  Hour 
claim  to  the  easterly  of  the  30-foot  strip.  But,  for  the  purpose  of  applying  the 
principles  of  law  which  will  control  here,  these  two  offers  may  be  considered 
as  one,  in  accordance  with  the  decision  in  102  Fed.  430,  supra.  The  court 
sustained  objections  to  the  evidence  offered,  and,  upon  assignments  of  error 
based  upon  these  rulings,  the  case  is  now  before  this  court. 

Before  Gilbert,  Ross,  and  Morrow,  Circuit  Judges. 

Morrow,  Circuit  Judge  (after  stating  the  facts  as  above). — The 
assignments  of  error  raise  but  one  question  which  need  now  be 
passed  upon,  all  others  having  been  adjudicated,  upon  the  writ  of 
error  of  the  defendant  in  error  herein,  in  the  case  of  Montana  Min. 
Co.  V.  St.  Louis  Min.  &  Mill.  Co.  (C.  C.  A.)  102  Fed.  430.  The  ques- 
tion for  present  consideration  is :  When  a  secondary  or  accidental 
vein  crosses  a  common  side  line  between  two  mining  locations  at  an 
angle,  and  the  apex  of  the  vein  is  of  such  width  that  it  is  for  a  given 
distance  partly  within  one  claim  and  partly  within  the  other,  to 
whom  does  such  portion  of  the  vein  belong?  This  question  does  not 
appear  to  have  ever  been  directly  passed  upon  by  the  courts.  But 
while  it  is  not  entirely  free  from  difficulty,  the  application  of  Vv^ell- 
established  principles  of  law  thereto  should  conclusively  deterinine 
the  question.  Two  important  elements  enter  into  the  consideration 
of  mining  rights :  First,  the  surface  boundaries,  defining  the  rights 
acquired  by  reason  of  a  vein  or  veins  apexing  within  such  bounda- 
ries ;  and,  second,  the  extent  of  underlying  mineral  deposits  attach- 
ing to  such  surface  rights. 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  525 

The  defendant  in  error  contends  that  it  is  entitled  to  the  vein  in 
its  entirety  in  depth  to  the  easterly  of  a  vertical  plane  drawn  through 
the  line,  E,  C,  upon  the  theory  that  the  said  line  is  an  end  line  so  far 
as  the  Drum  Lummon  vein  is  concerned,  or,  if  it  be  determined  that 
the  line,  E,  C,  is  a  side  line,  that  it  is  entitled  to  the  entire  vein  in 
depth  to  the  southerly  of  the  io8-foot  plane. 

As  to  the  first  contention,  it  is  a  well-settled  proposition  that  a 
mining  claim  can  have  but  two  end  lines,  and  that,  end  lines  having 
been  once  established,  they  become  the  end  lines  for  all  veins  found 
within  the  surface  boundaries.  Iron  Silver  Min.  Co.  v.  Elgin  Min. 
&  Smelt.  Co.,  1 18  U.  S.  196,  207,  6  Sup.  Ct.  1 177,  30  L.  Ed.  98 ;  Wal- 
rath  V.  Champion  Min.  Co.,  171  U.  S.  293,  307,  18  Sup.  Ct.  909,  43 
L.  Ed.  170.  This  court  has  already  determined  that  the  line,  E,  C, 
D,  is  a  side  line  common  to  the  two  claims  ( 102  Fed.  430) ,  and  there- 
fore it  cannot  be  considered  an  end  line  for  the  Drum  Lummon  vein. 

The  second  contention  of  the  defendant  in  error  involves  the  con- 
struction of  section  2322  of  the  Revised  Statutes.  That  section  pro- 
vides : 

"The  locator  of  a  mining  location  *  *  *  shall  have  the  exclusive  right 
to  possess  and  enjoy  *  *  *  all  veins,  lodes,  and  ledges  throughout  their 
entire  depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically." 

The  defendant  in  error  maintains  that  the  words  "top  or  apex" 
cannot  be  construed  to  mean  "top  or  apex  or  any  part  thereof,"  and 
that,  under  the  strict  construction  necessary,  extralateral  rights 
would  not  follow  when  the  whole  of  the  apex  was  not  within  the 
surface  lines.  If  this  be  the  correct  view  of  the  language  of  the 
statute,  manifestly  neither  party  herein  would  be  entitled  to  pur- 
sue the  vein  in  depth  between  the  108-foot  plane  and  the  133-foot 
plane,  since  the  apex  of  the  vein  between  those  points,  while  cross- 
ing the  side  line,  is  not  wholly  within  either  claim.  For  the  pur- 
poses of  illustration,  suppose  the  vein  were  regular  and  vertical 
for  the  25  feet  between  the  two  planes  mentioned,  crossing  the  side 
line  at  the  same  angle.  The  boundary  rights  between  the  parties 
could  not  then  be  determined  by  the  application  of  a  vertical  plane 
extending  to  the  center  of  the  earth  along  the  side  line,  and  25  feet 
in  horizontal  width,  since  that  would  be  constructing  an  end  line  to 
that  extent,  and  there  is  no  authority  in  the  statute  or  in  the  deci- 
sions for  any  such  action.  It  might  be  said  that  the  vein  could 
equitably  be  cut  by  a  plane  parallel  with  and  midway  between  the 
108  and  133-foot  planes,  thus  bisecting  the  portion  of  the  vein  in 
controversy,  and  giving  half  of  the  disputed  ground  to  each  claim. 
But  neither  is  there  any  authority  for  such  a  determination  by  the 
court.  It  would  seem,  therefore,  that  by  some  rule  the  entire  25 
feet  should  be  construed  to  apex  in  one  of  the  locations.  And  as, 
where  the  rights  of  two  mining  locators  are  apparently  equal  with 


526  SUB-SURFACE   RIGHTS. 

respect  to  mining  ground,  the  element  of  priority  of  location  is  con- 
trolling, preference  being  generally  given  to  the  senior  locator  (Ar- 
gentine Alin.  Co.  V.  Terrible  Min.  Co.,  122  U.  S.  478,  484,  7  Sup.  Ct. 
1356,  30  L.  Ed.  1 140),  the  entire  vein  would  be  given  to  plaintiff  in 
error.  If  this  be  the  true  doctrine  when  a  vein  is  vertical,  why  should 
there  be  any  change  in  its  application  when  the  vein  dips  ?  The  right 
of  lateral  pursuit  is  a  right  conferred  by  statute.  It  does  not  depend 
upon  circumstances,  and  is  as  absolute  as  the  ownership  of  a  vein 
apexing  within  the  surface  lines,  save  that  it  ceases  when  and  at  the 
point  that  it  interferes  with  the  statutory  rights  of  another.  In 
other  words,  the  determination  of  a  rule,  and  its  application  to  the 
case  before  the  court,  should  be  the  same  whether  the  vein  dips  to- 
wards the  junior  location  or  towards  the  senior  location,  or  does  not 
dip  at  all.  The  defendant  in  error,  in  support  of  its  contention  that 
the  right  of  extralateral  pursuit  only  remains  so  long  as  the  entire 
vein  is  within  the  claim,  cites  the  case  of  Fitzgerald  v.  Clark,  17 
Mont.  100,  42  Pac.  273,  30  L.  R.  A.  803,  the  decision  in  which  was 
affirmed  by  the  supreme  court  of  the  United  States.  171  U.  S.  92, 
18  Sup.  Ct.  941,  43  L.  Ed.  87.  But  the  question  here  involved  was 
not  there  considered.  It  appears  that  in  that  case  no  attention  was 
given  to  the  width  of  the  vein,  its  crossing  of  the  side  line  being  re- 
garded merely  as  a  point.  No  mention  whatever  was  made  of  the 
width  of  the  vein  or  of  its  apex.  Reference  is  also  made  by  the  de- 
fendant in  error  to  adjudications  upon  the  class  of  veins  called 
"split  veins."  But  the  case  under  review  does  not  involve  a  split 
vein,  and  a  different  principle  must  apply.  If,  then,  in  construction 
of  law  the  vein  for  the  25  feet  in  controversy  must  be  either  upon  the 
one  location  or  the  other,  and  if  the  senior  locator  has  priority  of 
title,  it  would  follow  that  the  right  of  lateral  pursuit  would  remain 
wath  the  senior  locator  within  a  plane  parallel  to  the  end  line  of  the 
senior  claim,  and  up  to  the  point  of  departure  of  the  apex,  or  in  this 
case  the  footwall.  It  may  be  said  that  the  application  of  this  rule 
will  sometimes  work  hardship.  It  is  true  that  hypothetical  cases 
may  be  assumed,  which,  as  individual  types,  may  present  difficulties 
in  equitable  adjudication.  But  the  application  of  principles  sanctioned 
by  judicial  authority  furnishes  the  most  effective  solution  of  such 
problems,  and  will  undoubtedly  reduce  the  seeming  inequities  to  a 
minimum. 

Upon  the  question  first  propounded  in  this  opinion,  therefore,  the 
only  deduction  which  can  be  made  from  the  foregoing  views  is  that 
inasmuch  as  neither  statute  nor  authority  permits  a  division  of  the 
crossing  portion  of  the  vein,  and  the  weight  of  authority  favors  the 
senior  locator,  the  entire  vein  must  be  considered  as  apexing  upon  the 
senior  location  until  it  has  wholly  passed  beyond  its  side  lines.  It 
follows  that  the  court  below  erred  in  its  refusal  to  admit  the  evidence 
offered  as  to  the  value  of  ores  taken  from  the  Drum  Lummon  vein 
on  its  dip  between  the  planes  designated  as  the  108-foot  and  133-foot 


EXTRALATERAL    RIGHTS    UNDER    ACT    1 872.  52/ 

planes,  and  the  cause  is  therefore  remanded  for  a  new  trial  as  to  dam- 
ages alleged  and  recovery  sought  for  conversion  of  ore  between  the 
planes  indicated.-^ 

Ross,  Circuit  Judge. — I  dissent.  The  case  of  Montana  Min.  Co. 
V.  St.  Louis  Min.  &  Mill.  Co.  (C.  C.  A.)  102  Fed.  430,  referred  to  in 
the  foregoing  opinion,  affirmed  the  existence  of  extralateral  rights 
in  respect  to  a  vein  that  enters  and  departs  from  a  side  line  only 
of  a  mining  claim,  and  the  judgment  in  the  present  case  affirms 
such  right  on  the  authority  of  the  decision  in  the  former  case.  Yet 
in  neither  is  the  point  at  all  discussed  by  the  court,  and  in  the  opinion 
in  the  former  case  there  is  not  a  word  said  from  which  it  can  be  seen 
that  any  such  point  was  presented  for  decision.  102  Fed.  430.  The 
importance  of  the  question,  not  only  to  the  correct  determination  of 
the  present  case,  but  in  respect  to  other  mining  claims,  is  too  mani- 
fest to  require  comment.  In  the  former  case  a  petition  for  rehearing 
is  now  pending,  and  I  th.ink  it  should  be  granted,  and  that  case,  to- 
gether with  the  present  one,  set  down  for  reargument,  to  the  end 
that  the  question  as  to  whether  any  extralateral  rights  exist  in  re- 
spect to  any  vein  that  enters  and  departs  from  a  side  line,  only,  be 
discussed  by  counsel,  and  fully  considered  by  the  court,  before  final 
determination. 


AJAX  GOLD  MIN.  CO.  v.  HILKEY  et  al. 
1903.     Supreme  Court  of  Colorado.     31  Colo.  131,  72  Pac.  447. 

Action  by  the  Ajax  Gold  Mining  Company  against  E.  J.  Hilkey 
and  others.  From  a  judgment  for  defendants,  plaintiff  appeals. 
Reversed. 

Cambpell,  C.  J. — ^This  is  an  action  by  the  owner  of  the  Victor 
Consolidated  against  the  owner  of  the  Triumph  mining  claim  to  re- 
cover for  the  value  of  ores  taken  from  a  vein  within  the  limits  of  the 
Triumph  lode,  of  which  both  parties  assert  ownership.  The  defend- 
ants say  the  ores  belong  to  them,  because  the  vein  from  which  they 
were  extracted  is  within  the  outer  boundaries  of  their  location,  while 
plaintiff's  ownership  is  based  upon  an  apex  right,  under  section  2322, 
Revised  Statutes  of  the  United  States   [U.  S.  Comp.  St.   1901,  p. 

1425]- 

Only  one  important  question  is  raised  by  the  appeal  of  the  apex 
claimant,  who  failed  below,  and  this  arises  out  of  the  following  in- 
struction given  to  the  jury  at  the  instance  of  the  defendants:  "If 
you  believe  from  the  evidence  in  this  case  that  the  discovery  lode 

^  See  Costigan,  Mining  Law,  433.  See  an  article  by  Judge  John  B.  Clay- 
berg,  on  "What  Questions  of  Mining  Law  Have  Been  Decided  in  the  Litiga- 
tion over  the  Drum  Lummon  Lode  or  Vein"  in  20  Yale  Law  Journal  19L 


528  SUB-SURFACE    RIGHTS. 

of  the  Victor  Consolidated  claim  passes  out  of  either  side  line  of  that 
claim  before  reaching  the  northerly  end  line  of  said  claim,  as  orig- 
inally located,  then  the  rights  of  the  plaintiff  to  any  ore  outside  the 
surface  boundaries  of  said  claim  in  any  vein  having  its  apex  within 
such  claim  are  limited  to  two  parallel  bounding  planes,  one  drawn 
through  the  southerly  end  line  of  said  Victor  Consolidated  claim  as 
originally  located,  and  the  other  passing  through  the  said  claim 
parallel  to  said  southerly  end  line  at  the  point  where  such  discovery 
vein  may  have  been  shown  to  depart  from  its  side  lines,  if  such  de- 
parture has  been  shown."  Both  parties  agree  that  by  it  the  jury 
were,  in  effect,  told  that,  if  the  discovery  vein  of  a  lode  mining 
claim  on  its  strike  departs  through  a  side  line,  no  extralateral  rights 
attach  to  any  other  vein  apexing  within  the  claim  beyond  the  point  of 
such  departure.  The  question  thus  presented  seems  not  to  have  been 
expressly  determined  by  the  Supreme  Court  of  the  United  States 
or  any  of  the  inferior  federal  or  state  courts.  In  the  absence  of  any 
decision  at  all  construing  the  act  of  Congress,  we  would  not  have 
much,  if  any,  doubt  as  to  its  meaning.  Its  language  is  broad  enough 
to  sustain  appellant's  contention  that  the  owner  of  a  lode  mining 
claim  has  extralateral  rights  in  and  to  all  veins  the  top  or  apex  of 
which  lies  within  its  surface  lines  extending  downward  vertically  to 
the  extent,  at  least,  of  the  length  of  the  apex  within  such  boundaries, 
even  though  the  discovery  vein  on  its  strike  does  not  cross  both  end 
lines ;  for  the  statute  provides  that  owners  of  such  claims  "shall  have 
the  exclusive  right  of  possession  and  enjoyment  of  all  the  surface 
included  within  the  hues  of  their  locations  and  of  all  veins,  lodes  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface  lines  extended  downward  vertically,  although 
such  veins,  lodes  or  ledges,  may  so  far  depart  from  a  perpendicular 
in  their  course  downward  as  to  extend  outside  the  vertical  side  lines 
of  such  surface  locations."  The  only  express  limitation  to  this  com- 
prehensive grant  is  found  in  the  proviso  of  the  same  section,  which 
declares  that  the  right  of  possession  to  such  outside  parts  of  veins 
"shall  be  confined  to  such  portions  thereof  as  lie  between  vertical 
planes  drawn  downward  as  aforesaid,  through  the  end  lines  of  their 
locations,  so  continued  in  their  own  direction  that  such  planes  will 
intersect  such  exterior  parts  of  said  veins  or  ledges."  There  does  not 
seem  to  be  anything  ambiguous  or  uncertain  in  this  language,  and, 
indeed,  appellees'  counsel  are  disposed  to  concede  that,  taken  literally, 
it  affords  some  warrant,  at  least,  for  appellant's  position ;  but  they 
say  that  by  numerous  decisions  construing  the  statute  the  courts  have 
enunciated  several  propositions  that  somewhat  restrict  its  apparent 
scope.  Appellees'  position  cannot  be  better  presented  than  in  the  lan- 
guage of  their  learned  counsel,  and  a  statement  of  their  propositions 
serves  to  bring  out  sharply  the  respective  contentions  so  ably  argued 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872. 


529 


on  both  sides.   The  following  map  will  also  aid  in  an  understanding 
of  the  controversy : 


rO        Cr 


r?^.z 


The  apex  of  the  discovery  vein  of  the  Victor  Consolidated  is  repre- 
sented by  b,  b'.  It  enters  the  claim  at  the  south  end  line,  and  its 
course  in  the  main  runs  parallel  with  the  claim  as  surveyed,  but 
passes  out  through  the  east  side  line  about  i,ooo  feet  from  the  south 
end  line,  a,  a',  is  the  vein  which,  as  contradistinguished  from  the  dis- 
covery vein,  we  call  the  "secondary  vein,"  which  the  evidence  tended 
to  show  passes  diagonally  across  the  location,  entering  it  through 
the  west,  and  leaving  it  through  the  east,  side  line.  The  Triumph 
claim  is  correctly  delineated  on  the  map.  If  the  ore  taken  from  the 
underground  workings  of  the  Triumph  was  taken  from  any  vein 
apexing, within  the  Victor  Consolidated — as  some  of  the  evidence 
tended  to  show — it  was  from  this  so-called  secondary  vein.  Stating 
the  contention  again  in  a  concrete  form,  the  jury  were  told  if  the 
discovery  vein  of  the  Victor  Consolidated  crossed  the  east  side  line 
at  C,  then  the  rights  of  the  plaintiff  to  ore  outside  of  its  surface 
boundaries  in  any  vein  having  its  apex  therein  is  limited  to  two 
parallel  bounding  planes,  one  drawn  through  the  south  end  line, 
1,4,  of  the  location,  as  originally  established,  and  the  other  passing 
through  the  claim  at  the  point  where  the  discovery  vein  leaves  the 
east  end  line,  and  parallel  to  the  south  end  line  at  c,  c'.  The  north 
end  line,  or  bounding  plane,  of  this  right,  is  the  dotted  line  c,  c', 
and  the  south  bounding  plane  the  south  end  line  of  the  location,  i,  4. 
Plaintiff's  extralateral  rights  as  to  all  veins  within  the  surface  lines 
were,  by  this  instruction,  restricted  to  that  part  of  the  claim  south 
of  the  line,  c,  c',  and  in  that  part  between  this  line  and  the  north  end 
line  of  the  claim  he  was  given  none  whatever,  though  about  500  feet 
of  the  apex  of  the  secondary  vein  was  found  in  this  latter  segment. 

34 — Mining  Law 


530 


SUB-SURFACE    RIGHTS. 


The  three  propositions  of  law  said  to  be  estabhshed  by  the  deci- 
sions, of  which  the  fourth  one  stated  by  appellees  is  said  to  be  a  nec- 
essary corollary,  are :  ( i )  There  can  be  but  one  set  of  end  lines  or 
bounding  planes  for  a  single  location,  and  these  limit  the  extralateral 
right  upon  all  lodes  or  veins  apexing  therein.  (2)  These  end  line 
or  bounding  planes  are  determined  by  the  strike  of  the  discovery 
vein  with  reference  to  the  located  side  and  end  lines  of  the  claim. 
(3)  Where  the  apex  of  the  discovery  vein  passes  through  one  end 
and  one  side  line,  the  extralateral  right  upon  such  vein  will  be 
bounded  by  a  vertical  plane  drawn  downward  through  the  crossed 
end  line,  and  another  vertical  plane  parallel  thereto,  but  operating  at 
the  point  where  the  apex  leaves  the  side  line.  The  fourth  proposition 
they  thus  express  :  "The  necessary,  logical  sequence  of  these  proposi- 
tions is  that,  where  the  discovery  vein  on  its  strike  departs  through 
a  side  line,  no  extralateral  rights  attach  to  any  other  vein  apexing 
within  the  claim  beyond  the  point  of  such  departure." 

Since  appellant  concedes  the  first  three  propositions,  there  is  no 
necessity  for  discussing  them,  or  citing  the  authorities  upon  which 
they  rest.  But  the  alleged  deduction  therefrom  appellant  vigorously 
combats,  and  that  presents  the  question  for  our  decision.  We  first 
observe  that  that  part  of  appellees'  argument  to  the  effect  that  where 
a  location  is  laid  across,  instead  of  along,  the  discovery  vein,  the  end 
lines  become  the  side  lines  of  the  location,  and  the  side  lines  become 
the  end  lines,  is  not  pertinent  to  anything  now  before  us,  and,  in  so 
far  as  the  deduction  depends  on  such  proposition,  it  is  without  sup- 
port. There  is  no  dispute  between  counsel  as  to  this  doctrine  of 
shifting  of  side  and  end  lines  in  the  case  supposed,  but  it  is  wholly 
inapplicable  here,  for  the  Victor  Consolidated  location  is  laid  along 
the  course  of  the  discovery  vein,  and  this  vein  enters  the  claim 
through  the  south  end  line,  and  passes  out  under  the  east  side  line. 
Besides  this,  the  location  is  patented,  and  there  is  authority  for  say- 
ing that  its  end  lines,  as  chosen  by  the  locator  and  described  by  the 
patent,  are,  for  all  purposes  and  under  all  circumstances,  to  be  taken 
as  the  fixed  end  lines. 

But  conceding  the  correctness  of  all  three  propositions,  as  to  which 
the  counsel  upon  both  sides  are  in  accord,  we  cannot  agree  v/ith 
learned  counsel  for  appellees  in  their  ingenious  argimient  that  the 
fourth  proposition,  which  they  must  establish  in  order  to  sustain  the 
instruction  complained  of,  is  a  logical  sequence  of  either  or  all  of 
the  others.  It  is  quite  true  that  there  can  be  but  one  set  of  end 
lines  for  one  location,  and  these  must  perform  that  function  not 
only  for  the  discovery  vein,  but  for  all  other  veins  apexing  with- 
in the  surface  lines.  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  & 
M.  Co.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  ']2\  Walrath  v. 
Champion  Mining  Co.,  171  U.  S.  293,  297,  308.  18  Sup.  Ct.  909,  43 
L,  Ed.  170.  This,  however,  does  not  mean  that  all  such  veins  have 
exactly  the  same  extralateral  rights,  nor  can  it  be  said  that  only  so 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  53I 

much  of  a  secondary  vein  as  apexes  within  that  part  of  the  claim 
where  the  apex  of  the  discovery  vein  is  found  has  such  rights.  In 
the  Walrath  Case,  supra,  which  was  twice  before  the  Circuit  Court 
of  Appeals  (63  Fed.  552,  19  C.  C.  A.  323,  72  Fed.  978)  and  once 
before  the  Supreme  Court  of  the  United  States,  there  are  some  ex- 
pressions in  the  opinions  of  the  Circuit  Court  of  Appeals  from  which, 
taken  alone,  it  mig-ht  be  inferred  that  under  facts  like  those  here 
present  the  owner  of  a  claim  would  have  extralateral  rights  in  the 
discovery  vein  even  beyond  the  point  where,  on  its  strike,  it  leaves 
the  side  line ;  and  that  the  bounding  planes,  within  which  such  rights 
are  to  be  exercised,  must  be  drawn  through  the  two  end  lines.  But 
appellant  makes  no  such  contention  here,  and  is  content  with  extra- 
lateral  rights  in  the  discovery  vein  only  up  to  the  point  of  its  de- 
parture from  the  east  side  line,  so  that,  for  our  present  argument, 
we  assume  that  to  be  the  true  doctrine.  The  end  lines  constitute  a 
barrier,  beyond  which  a  locator  cannot  follow  a  vein  on  its  strike, 
whether  it  be  a  discovery  or  secondary  vein ;  and  they  also  limit  the 
bounding  planes  within  which  his  extralateral  rights  are  to  be  exer- 
cised in  following  such  vein  on  its  dip.  In  exercising  such  extra- 
lateral  rights,  the  locator  cannot,  in  any  case,  pursue  the  vein  on  its 
dip  beyond  the  bounding  planes  drawn  through  the  end  lines ;  but, 
as  we  have  said,  appellant  is  content  to  be  restricted  in  the  exercise 
of  such  rights  in  the  secondary  vein  to  planes  drawn  parallel  to  the 
end  lines,  and  passing,  the  one  through  the  claim  at  the  point  where 
the  vein  enters,  and  the  other  where  it  departs  from,  the  surface  line 
of  the  location.  The  extent  of  the  right  depends  upon  the  length  of 
the  apex,  and  the  extralateral  rights  are  measured  not  necessarily 
by  the  end  lines — and  only  so  when  the  vein  passes  across  both  end 
lines — but  by  bounding  planes  drawn  parallel  to  the  end  lines  pass- 
ing through  the  claim  at  the  points  where  it  enters  into  and  departs 
from  the  same.  It  would  seem,  therefore,  necessarily  to  follow  that 
the  extralateral  right  depends,  inter  alia,  upon  the  extent  of  the  apex 
within  the  surface  lines,  and.  while  the  end  lines  of  the  claim  as  fixed 
by  the  location  are  the  end  lines  of  all  veins  apexing  within  its  ex- 
terior boundaries,  the  planes  which  bound  such  rights  of  different 
veins  may  be  as  different  as  the  extent  of  their  respective  apices, 
though  all  such  planes  must  be  drawn  vertically  downward  parallel 
with  the  end  lines.  It  makes  no  difference  in  what  portion  of  the 
patented  claim  the  apex  is.  Its  extralateral  rights,  under  this  rule, 
can  easily  be  ascertained.  The  apex  of  a  secondary  vein  need  not  be 
in  the  same  portion  of  the  claim  as  is  the  apex  of  the  discovery  vein. 
The  statute  does  not  say  so.  The  decisions  heretofore  made  certainly 
do  not  so  require.  The  three  propositions  deduced  from  these  deci- 
sions do  not  logically  lead  to  that  doctrine.  While,  as  we  have  said, 
there  is  no  decision  upon  the  exact  point,  yet  we  think  there  are 
cases,  in  addition  to  those  already  cited,  which  necessarily  lead  to 
this  conclusion,  among  which  is  Cons.  Wyoming  G.  M.  Co.  v.  Cham- 


532  SUB-SURFACE    RIGHTS. 

pion  M.  Co.  (C.  C.)  63  Fed.  545,  546.  While  this  court,  in  Catron 
V.  Old,  23  Colo.  433,  48  Pac.  687,  58  Am.  St.  Rep.  256,  criticised  this 
case,  it  did  not  do  so  as  to  the  point  now  under  consideration.  It 
was  with  reference  to  the  doctrine  of  comparative  direction  of  the 
lode  which  left  to  the  jury,  as  a  question  of  fact,  whether  a  vein  ex- 
tends more  along  than  across  the  claim,  that  the  criticism  went ;  and 
we  there  said  this  introduced  an  element  of  uncertainty,  which,  if 
possible,  should  be  avoided.  See,  also,  Fitzgerald  v.  Clark,  17  Mont, 
100,  42  Pac.  273,  52  Am.  St.  Rep.  665,  30  L.  R.  A.  803,  affirmed  in 
171  U.  S.  92,  18  Sup.  Ct.  941,  43  L.  Ed.  87;  Tyler  M.  Co.  v.  Last 
Qiance  M.  Co.  (C.  C.)  71  Fed.  848;  2  Lindley  on  Mines,  §  591 
et  seq. 

The  language  of  Judge  Hallett,  when  Del  Monte  Case  (C.  C.)  66 
Fed.  212,  was  before  him,  is  pertinent  to  the  argument  of  appellees 
that  there  can  be  but  one  set  of  end  lines  or  bounding  planes  for  all 
the  veins  covered  by  a  single  location,  and  that  they  must  be  the 
same  for  each.  He  thus  disposes  of  it :  'Tt  is  said  that  we  cannot 
make  a  new  end  line  at  the  point  of  divergence  or  elsewhere,  be- 
cause the  court  cannot  make  a  new  location,  or  in  any  way  change 
that  made  by  the  parties.  Iron  Silver  Min.  Co.  v.  Elgin  Min.  & 
Smelting  Co.,  118  U.  S.  196,  6  Sup.  Ct.  1177,  30  L.  Ed.  98.  This, 
however,  is  not  necessary.  We  can  keep  within  the  end  lines  fixed 
by  the  locator  in  respect  to  any  extralateral  right  that  may  be  recog- 
nized without  drawing  any  line,  and,  if  there  be  magic  in  the  word 
'line,'  it  will  be  better  not  to  use  it."  The  opinion  of  Mr.  Justice 
Brewer,  when  the  same  case  came  before  the  federal  Supreme  Court, 
is  very  instructive,  and,  as  we  read  it,  is  authority  for  the  conclusion 
which  we  have  reached  in  the  case  in  hand.  In  speaking  of  extra- 
lateral  rights  of  a  vein  entering  a  claim  through  an  end  line  and 
passing  out  under  a  side  line,  he  said :  "Given  a  vein  whose  apex  is 
within  his  surface  limits,  he  can  pursue  that  vein  as  far  as  he  pleases 
in  its  downward  course  outside  the  vertical  side  lines."  And  refer- 
ring to  the  proviso  of  section  2322,  which  we  have  hereinabove 
quoted,  he  proceeds :  "This  places  a  limit  on  the  length  of  the  vein 
beyond  which  he  may  not  go,  but  it  does  not  say  that  he  shall  not 
go  outside  the  vertical  side  lines  unless  the  vein  in  its  course  reaches 
the  vertical  planes  of  the  end  lines.  *  *  *  Naming  limits  be- 
yond which  a  grant  does  not  go  is  not  equivalent  to  saying  that 
nothing  is  granted  which  does  not  extend  to  those  limits.  The  lo- 
cator is  given  a  right  to  pursue  any  vein  whose  apex  is  within  his 
surface  limits  on  its  dip  outside  the  vertical  side  lines,  but  may  not, 
in  such  pursuit,  go  beyond  the  vertical  end  lines.  And  this  is  all  that 
the  statute  provides."  This  reasoning  applies  as  much  to  a  secondary 
as  to  the  discovery  vein.  It  is  a  vein  that  apexes  within  the  surface 
limits,  and  there  is,  to  say  the  least,  no  more  reason  in  denying  to  it 
extralateral  rights  because  it  does  not  apex  within  that  particular 
part  of  the  claim  where  the  apex  of  the  discovery  vein  is,  than  there 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  533 

is  for  denying  to  any  vein  extralateral  rights  unless  in  its  course  it 
reaches  the  vertical  planes  of  the  end  lines.  Justice  Brewer  says  this 
latter  condition  is  not  essential  to  the  exercise  of  extralateral  rights, 
and,  a  fortiori,  the  former  is  not. 

Our  conclusion  is  that  for  all  veins,  both  discovery  and  secondary, 
of  a  patented  claim,  the  owner  has  extralateral  rights,  at  least  for 
so  much  thereof  as  apex  within  the  surface  lines ;  that  such  rights 
as  to  secondary  veins  are  not  confined  to  such  veins  as  apex  within 
the  same  segment  of  the  claim  in  which  the  apex  of  the  discovery 
vein  exists ;  and  while  the  end  lines  of  the  location,  as  fixed  and  de- 
scribed in  the  patent,  are  the  end  lines  of  all  veins  apexing  within  the 
surface  boundaries,  and  may  constitute  the  bounding  planes  for  such 
extralateral  rights,  and  in  no  case  can  the  locator  pursue  the  vein  on 
its  dip  outside  the  surface  lines  beyond  such  planes  continued  in  their 
own  direction  until  they  intersect  such  veins,  yet  these  bounding 
planes,  which  in  all  cases  must  be  drawn  parallel  to  the  end  lines, 
need  not  be  coincident.  The  giving  of  this  instruction  was  prejudi- 
cial error.  The  judgment  is  therefore  reversed,  and  the  cause  re- 
manded. 

Reversed.^- 


JEFFERSON  MIN.  CO.  v.  ANCHORIA-LELAND  MIN.  & 

MILL.  CO. 

1904.     Supreme  Court  of  Colorado.     32  Colo.  176,  75  Pac.  1070. 

Action  by  the  Anchoria-Leland  Mining  &  Milling  Company 
against  the  Jefferson  Mining  Company.  From  a  judgment  for  plain- 
tiff, defendant  appeals.   Affirmed. 

The'  Anchor  and  the  Mattie  L.  are  both  patented  lode  mining 
claims,  and,  as  originally  located,  overlapped  on  the  surface,  as 
shown  by  the  accompanying  diagram.  The  appellee,  plaintiflf  below, 
the  Anchoria-Leland  Mining  &  Milling  Company,  is  the  owner  of 
the  Anchor,  and  the  Jefferson  Mining  Company,  appellant  and  de- 
fendant below,  owns  the  Mattie  L.  claim.  The  Anchor  went  first  to 
patent  October  5,  1894,  without  adverse  or  protest  by  the  owners  of 
the  Mattie  L.,  and  the  patent  includes  the  entire  surface  in  conflict. 
A  patent  was  issued  for  the  Mattie  L.  November  3,  1896,  in  which 
the  conflicting  surface  ground  is  expressly  excepted  from  the  grant. 
The  Mattie  L.  as  actually  located  is  across,  instead  of  along,  the 
course  of  the  discovery  vein,  as  subsequent  developments  of  the 
claim  show,  so  that  what  its  locators  believed  to  be,  and  so  desig- 
nated as,  its  end  lines  are  in  law  its  side  lines,  and  its  side  lines  are 
its  end  lines,  so  far  as  concerns  extralateral  rights.    The  Anchor 

^  See  Costigan,  Mining  Law,  443-444. 


534 


SUB-SURFACE    RIGHTS. 


location  was  along  the  course  of  its  discovery  vein,  so  that  its  located 
end  lines  are  the  legal  end  lines  for  all  veins  that  have  their  apex 
within  its  boundaries.  The  relative  positions  of  the  two  locations, 
and  the  patented  area  of  each,  and  the  segment  of  the  vein  in  con- 
troversy, are  shown  with  sufficient  accuracy  by  the  following  dia- 
srram : 


There  is  no  material  conflict  in  the  testimony.  The  case  was  tried 
by  the  court  without  a  jury,  upon  an  agreed  statement  of  facts, 
which  was  supplemented  by  documentary  evidence  and  oral  testi- 
mony produced  by  both  parties.  From  the  agreed  statement,  in 
addition  to  the  facts  already  recited,  it  appears  that  what  is  called  in 
the  record  a  secondary  vein,  as  distinguished  from  the  discovery 
vein,  and  delineated  on  the  diagram  as  a-b,  enters  the  exterior  boun- 
daries of  the  Mattie  L.  across  the  easterly  boundary  line  thereof 
about  510  feet  southerly  from  corner  No.  i  of  that  location,  and 
thence  continues,  substantially  parallel  with  the  discovery  vein 
(which  is  near  the  northern  boundary),  on  a  southwesterly  course 
across  its  patented  surface,  and  thence  across  the  Anchor  claim,  en- 
tering it  at  the  north,  and  departing  from  it  at  the  south  side  line. 


EXTRALATERAL    RIGHTS    UNDER   ACT    1872.  535 

This  vein  has  a  dip  to  the  southeast,  and  the  ore  in  controversy  is 
situated  in  that  segment  of  the  vein,  a-b,  under  the  surface  of  the 
Anchor  claim,  and  within  vertical  planes  drawn  downwards  through 
its  side  and  end  lines. 

This  vein,  a-b,  has  a  portion  of  its  apex  within  the  patented  sur- 
face of  each,  and  the  outcrop  appears  throughout  its  entire  course 
across  both  of  the  locations.  In  following  this  vein  on  its  dip  the 
owners  of  the  Mattie  L.  (the  Jefferson  Mining  Company)  ran  a 
drift  under  the  north  side  Une  of  the  Anchor  lode,  and  within  the 
parallelogram,  c,  x,  e,  f,  in  which  are  found  the  ore  bodies  in  contro- 
versy, and  began  to  extract  and  remove  ore  from  such  segment  of  the 
vein ;  whereupon  this  action  was  brought  by  the  Anchoria  Company, 
as  the  owner  of  the  Anchor  claim,  to  restrain  the  Jefferson  Com- 
pany, the  owner  of  the  Mattie  L.,  from  continuing  such  work.  Fur- 
ther reference  is  made  in  the  opinion  to  the  evidence  introduced  by 
both  parties  supplementing  the  agreed  statement  of  facts. 

The  court  made  findings  of  fact  in  favor  of  the  plaintiff  company, 
establishing  the  seniority  of  the  Anchor  claim,  and  permanently  en- 
joined defendant  from  removing  any  ore  lying  beneath  the  surface 
of  the  Anchor  claim  and  within  vertical  planes  drawn  downwards 
through  its  side  lines  and  end  lines. 

Campbell,  J.  (after  stating  the  facts). — The  positions  taken  by 
the  parties  may  thus  be  stated:  Appellant's  contentions  are,  first, 
that,  in  law  and  in  fact,  the  Mattie  L.  is  senior  to  the  Anchor,  and 
therefore  entitled  to  the  ore  in  controversy  because  of  its  priority 
under  the  doctrine  governing  its  intraliminal  rights;  second,  that, 
regardless  of  the  question  of  seniority,  as  to  the  secondary  vein,  a-b, 
the  Mattie  L.  has  extralateral  rights  southerly  on  the  dip  of  that 
vein  between  what  its  locators  considered  its  parallel  side  lines,  but 
which  in  law  are  parallel  end  lines,  and  this  covers  the  segment  in 
dispute-,  third,  that  the  Anchor  claim,  although  it  has  within  its  ex- 
terior boundaries  a  portion  of  the  apex  of  this  particular  vein,  is  not 
entitled  to  the  ore  in  controversy  within  the  parallelogram,  c,  x,  e,  f, 
but  the  same  belongs  to  the  Jefferson  Mining  Company,  the  owner 
of  the  apex  of  the  vein,  a-b,  northeasterly  from  x.  Each  of  these 
propositions  is  controverted  by  appellee,  and  we  shall  discuss  them, 
but  not  in  the  order  pursued  by  counsel  in  their  briefs. 

It  is  to  be  observed  again  that  a-b  is  not  the  discovery  vein  of 
either  location,  but  the  parties  seem  to  agree  that,  under  the  facts  of 
this  case,  their  respective  rights  thereto,  whether  intraliminal  or  ex- 
tralateral, are  not  different  from  what  they  would  be  were  both  loca- 
tions based  upon  it  as  such. 

I.  In  one  branch  of  the  argument  of  appellant's  learned  counsel 
they  say  that  the  question  as  to  which  is  the  senior  location  is  the 
vital  one  in  the  case.  This  is  so  because  there  are  surface  outcrop- 
pings  of  the  same  vein  within  the  boundaries  of  two  lode  mining 
claims  which  conflict  on  the  surface.     In  such  circumstances  appel- 


536  SUB-SURFACE    RIGHTS. 

lant  asserts,  and  appellee  concedes,  that  the  claim  first  located  neces- 
sarily carries  the  right  to  work  the  vein,  and  they  both  cite  and 
rely  upon:  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478,  7 
Sup.  Ct.  1356,  30  L.  Ed.  1 140;  Tyler  M.  Co.  v.  Sweeney,  54  Fed. 
284,  4  C.  C.  A.  329;  Last  Chance  M.  Co.  v.  Tyler  M.  Co,  61  Fed. 
557,  9  C.  C.  A.  613,  157  U.  S.  683,  15  Sup.  Ct.  733,  39  L.  Ed. 
859;  Tyler  M.  Co.  v.  Sweeney,  79  Fed.  2']'],  279,  24  C.  C.  A.  578, 

In  the  last  case  it  was  saicl  that  the  ore  body  in  dispute  is  on  the 
dip  of  the  lode  or  vein  within  the  extended  vertical  planes  of  the  end 
lines  of  the  Tyler  claim,  and  also  within  the  side  lines  of  the  Last 
Chance  claim,  and  on  the  dip  of  the  vein  as  it  passed  through  that 
claim,  and  it  was  there  said  that  "the  question  as  to  which  claim  was 
first  located  necessarily  determines  the  rights  of  the  respective  par- 
ties." Applying  this  principle  to  the  present  case  concretely,  it  may 
be  said  that  the  ore  in  controversy  here  is  on  the  dip  of  the  lode,  a-b, 
between  the  extended  vertical  planes  of  the  legal  end  lines  of  the 
Mattie  L.  claim.  It  is  also  v.ithin  the  side  lines  of  the  Anchor  claim, 
and  on  the  dip  of  the  vein  as  it  passes  through  that  claim.  If  the 
reasoning  and  conclusion  in  the  Tyler-Sweeney  Case,  supra,  are 
right — and  both  parties  here  agree  that  they  are — then  it  seems  log- 
ically to  follow  that  the  senior  location  is  entitled  to  the  ore  in  con- 
troversy. It  may  be  that  the  facts  of  this  case  differentiate  it  from 
those  cited,  and  that  the  principle  therein  established  does  not  apply 
here.  And  while  it  may  not  be  necessary  for  us  to  rest  our  decision 
solely  upon  the  question  as  to  the  seniority  of  the  respective  loca- 
tions, yet,  as  lx)th  parties  deem  it  vital,  we  first  inquire  which  is  the 
older  location  ? 

These  claims  overlap  on  the  surface.  The  Anchor  applied  for,  and 
first  received,  its  patent,  and  no  protest  or  adverse  was  made  thereto 
by  the  owners  of  the  Mattie  L.  The  United  States  statute  governing 
such  applications  provides  for  ample  notice,  which  is  equivalent  to  a 
summons  in  a  judicial  proceeding,  and  he  who  fails  to  heed  it  has  no 
right  to  complain  that  his  rights  are  concluded  by  it,  and  if,  in  such 
a  case,  a  patent  is  issued  in  pursuance  of  an  application  regularly 
made,  all  persons  are  concluded.  Had  the  owners  of  the  Mattie  L. 
protested  the  application  for  patent  of  the  Anchor,  and  brought  their 
suit  in  support  of  such  adverse  claim,  and  the  judgment  of  the  court 
in  which  the  suit  was  pending  had  been  in  favor  of  the  Anchor, 
this  would  have  been  a  conclusive  determination  that  the  latter  is 
the  senior  location.  Such  a  judgment  of  the  court  would  be  no  more 
conclusive  than  the  determination  by  the  officers  of  the  land  depart- 
ment, in  the  absence  of  such  protest,  that  the  Anchor  was  entitled  to 
a  patent  for  all  of  the  territory  within  its  surface  boundaries,  includ- 
ing the  strip  covered  by  both  locations.  Last  Chance  M.  Co.  v. 
Tvler  M.  Co.,  157  U.  S.  683,  15  Sup.  Ct.  733,  39  L.  Ed.  859;  Bunker 
Hill,  etc.,  M.  &  C.  Co.  v.  Empire  State,  etc.,  Co.,  109  Fed.  538,  48 
C.  C.  A.  665.   It  may  be  true,  as  appellant  contends,  that,  to  protect 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  537 

the  apex  rights  of  such  subsequent  locator,  no  protest  is  necessary 
where  the  junior  location  is  made  on  the  apex  of  a  vein  on  the  dip 
of  which  the  senior  patented  location  is  based,  and  there  is  no  sur- 
face conflict;  but  in  this  case  the  Anchor  senior  location  has  a  por- 
tion of  the  apex  of  the  same  vein,  and  there  was  a  conflict  in  the 
surface  between  the  two  locations,  and  the  rule  invoked  by  both  par- 
ties is  applicable  to  the  present  case. 

Upon  the  trial,  however,  appellant,  over  the  objection  of  appellee, 
was  permitted  to  go  behind  the  patents  to  introduce  evidence  upon 
the  question  of  the  date  of  the  location  of  the  respective  claims,  since 
the  patents  on  their  face  do  not  disclose  the  dates  of  such  location, 
and  to  rebut  this  testimony  appellee  introduced  oral  testimony.  Ap- 
pellant, therefore,  cannot  complain  if  from  this  showing,  as  well  as 
from  the  adjudication  of  the  officers  of  the  land  department  in  grant- 
ing a  patent  to  the  Anchor  claim,  which  we  hold  conclusive,  it  ap- 
pears that  the  Anchor  is  the  senior  location.  It  was  a  perfected  min- 
ing location  not  later  than  the  loth  of  September,  1891,  and  the  Mat- 
tie  L.  does  not  relate  back  further  than  the  14th  of  October  of  the 
same  year,  because  it  did  not  have  a  valid  discovery  until  that  time, 
and  until  after  the  location  of  the  Anchor  was  made.  It  is  true  that 
the  trial  court  disregarded  all  the  evidence,  documentary  and  oral, 
produced  at  the  trial,  with  respect  to  the  date  of  location  of  these 
claims,  except  that  pertaining  to  the  patents  themselves,  apparently 
basing  its  decision  solely  upon  the  effect  of  the  patent  proceedings ; 
but  if  the  other  evidence  admitted,  but  not  considered,  is  competent 
or  material  to  the  issue  of  priority,  it  quite  conclusively  shows  the 
seniority  of  the  Anchor  location.  The  complaint  of  appellant  that 
the  trial  court  improperly  refused  to  grant  it  a  new  trial  on  the 
ground  of  surprise  in  the  attack  made  by  appellee  upon  the  discovery 
of  the  Mattie  L.,  if  at  all  important  here,  is  Vv^holly  untenable  for 
the  reason  that  the  proof  as  to  the  alleged  surprise  is  altogetlier  in- 
sufficient under  our  practice ;  and,  even  if  appellant  were  surprised, 
there  is  no  shov/ing  that,  in  case  of  a  second  trial,  it  would  be  able  to 
fortify  or  strengthen  its  case  as  made  upon  the  first. 

2.  The  second  contention  of  appellant  is  that  if  the  seniority  of  the 
Anchor  claim  be  admitted,  nevertheless  the  ore  body  in  dispute  be- 
longs to  the  Mattie  L.  This  is  the  argument :  The  discovery  vein 
of  the  Anchor  crosses  both  end  lines  of  that  location.  Its  dip  right 
thereon  is  to  follow  the  vein  at  right  angles  to  the  side  lines,  and  its 
owner  may  not  follow  any  vein,  either  discovery  or  secondary,  on  the 
dip  at  any  other  angle.  Referring  again  to  the  diagram,  counsel 
say  that  the  owner  of  the  Anchor  may  follow  the  discovery  vein,  y-z, 
wherever  found  within  the  exterior  lines  of  the  survey,  and  upon  its 
dip  between  the  planes,  PO,  being  the  planes  of  the  end  Hues,  and 
may  follow  the  secondary  vein,  a-b,  between  vertical  planes  drawn, 
parallel  to  the  planes  of  the  end  lines,  at  the  points  x  and  h,  where 


538  SUB-SURFACE    RIGHTS. 

the  vein  a-b  departs  from  the  side  hnes  of  the  location,  and  within 
such  planes,  represented  by  the  parallelogram,  x,  c,  h,  g,  may  follow 
the  vein,  a-b,  to  its  south  side  line,  either  on  its  strike  or  dip,  at  any 
point  west  of  x,  but  may  not  follow  it  east  of  x,  because  the  apex 
of  the  vein,  a-b,  between  x  and  a,  belongs  to  the  owner  of  the  Mattie 
L.  claim,  which  by  its  patent  has  the  right  to  follow  such  vein  on  its 
dip  between  vertical  planes  drawn  parallel  to  and  coincident  with  the 
legal  end  lines  (that  is,  the  located  side  lines)  of  the  Mattie  L.  loca- 
tion, and  this  includes  the  vein  under  the  surface  of  the  Anchor  with- 
in the  parallelogram,  c,  x,  e,  f. 

It  is  now  settled  law  that  the  legal  end  lines  of  the  original  or  dis- 
covery vein  are  the  end  lines  of  all  veins  within  the  surface  bounda- 
ries with  respect  to  extralateral  rights.  While  appellant  expressly 
disclaims  that  the  present  case  involves  the  doctrine  of  extralateral 
rights,  nevertheless  in  argument  its  counsel  virtually  asks  to  have  the 
principle  of  that  rule  applied  to  the  facts.  That  doctrine  does  not  fit 
the  facts  of  the  case,  for  the  legal  question  is  one  strictly  of  intra- 
liminal  rights.  Neither  can  we,  by  analogy,  apply  to  the  facts  the 
principles  of  that  doctrine,  as  we  proceed  to  show. 

The  ore  bodies  in  dispute  within  the  parallelogram,  c,  x,  e,  f,  ex- 
cept the  triangle,  k,  c,  n,  to  which  appellant  can  make  no  claim,  are 
within  the  surface  lines  of  the  Mattie  L.,  and  the  entire  parallelogram 
is  wholly  within  the  surface  Hnes  of  the  Anchor.  The  doctrine  of 
extralateral  rights  refers  to  that  part  of  a  vein  which,  on  the  dip,  lies 
outside  of  the  side  lines  of  the  location  within  whose  surface  lines 
the  apex  of  the  vein  appears,  and  not  to  any  part  of  such  vein, 
either  the  outcrop  or  segments  on  the  dip  thereof,  which  lie 
wholly  within  planes  drawn  downwards  coincident  with  its 
surface  boundaries.  In  other  words,  the  extralateral  rights  of  a  loca- 
tor of  a  lode  mining  claim  do  not  attach  until  after,  in  pursuit  of  his 
vein  on  its  dip,  he  crosses  the  side  lines  of  his  location.  Here,  as  we 
have  said,  in  pursuing  the  vein,  a-b,  from  its  apex,  which  is  within 
the  surface  lines  of  the  Mattie  L.,  thence  downward  on  its  dip,  its 
owner  has  encountered  a  segment  thereof  inside  the  side  lines,  and 
also  the  end  lines,  of  the  Mattie  L.,  which  is  also  within  the  surface 
lines  of  the  senior  Anchor  location.  This  segment,  too,  has  a  part  of 
the  apex  of  the  same  vein  within  the  surface  boundaries  of  the  An- 
chor. It  will  not  do  to  say  that  such  segment  is  outside  of  the  side 
lines  of  the  Mattie  L.,  because  it  is  also  within  the  boundaries  of  the 
senior  Anchor,  and,  though  the  Mattie  L.  does  not  own  the  conflict- 
ing ground,  still  this  very  ground  is  actually  physically  within  its 
surface  boundaries.  The  fact  that  it  belongs  to  another  person, 
and  is  within  the  surface  boundaries  of  another  location,  does  not 
change  its  position  on  the  ground  with  reference  to  legal  boundary 
lines  of  the  respective  locations. 

To  make  the  point,  if  possible,  still  clearer,  suppose  that  the  Mattie 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  539 

L.  patent  had  included  all  the  ground  which  its  original  survey  en- 
compassed. This  would  embrace  the  strip  in  dispute  patented  by  the 
Anchor.  In  other  words,  suppose  the  Anchor  was  out  of  the  case 
entirely,  and  we  were  required  to  ascertain  the  nature  and  extent  of 
the  rights  of  the  Mattie  L.  to  all  the  veins  found  within  its  surface 
lines.  On  the  assumption  that  it  has  the  apex  of  the  vein,  a-b,  then 
the  rights  of  the  locator  are  defined  by  section  2322,  Rev.  St.  [U.  S. 
Comp.  St.  1901,  p.  1425].  The  property  rights  conferred  by  a  lode 
location  thereunder  are  twofold  (i  Lindley  on  Mines  [2d  Ed.]  § 
549),  intraliminal,  and  extraliminal  or  extralateral.  The  first  em- 
braces all  within  its  boundaries  down  to  the  center  of  the  earth ;  the 
second,  while  depending  for  its  existence  upon  something  within  such 
boundaries,  may  nevertheless  be  exercised,  under  certain  conditions, 
beyond  those  boundaries.  Now,  the  segment  of  the  vein  in  dispute 
here  is  wholly  within  the  surface  lines  of  the  Mattie  L.  as  they  were 
run  upon  the  ground.  The  property  rights  of  the  owner  thereto  are 
therefore  strictly  intraliminal.  and  in  no  sense  referable  to  the  law 
governing  property  rights  of  the  second  class.  There  would  seem  to 
be  no  doubt  of  this  conclusion  in  the  hypothetical  case.  Instead  of 
the  supposed  case,  however,  we  have  one  where  two  locations  cover 
the  same  ground,  and  where  the  strip  common  to  both  is  expressly 
excepted  from  the  Mattie  L.  patent  because  it  had  been  previously 
segregated  from  the  public  domain  and  conveyed  by  the  United 
States  to  the  owner  of  the  older  Anchor  location.  Neither  this  ex- 
clusion from  the  I\lattie  L.  patent  of  the  disputed  strip,  nor  the  pro- 
jection of  the  Anchor  into  its  territory,  nor  both  combined,  operate 
to  change  the  boundary  lines  of  the  Mattie  L.  location.  They  are 
still  to  be  traced  on  the  ground  as  they  were  first  run,  and  the  ground 
in  controversy  is  just  as  much  within  the  existing  surface  lines,  both 
side  lines  and  end  lines,  of  the  Mattie  L.  as  when  such  lines  were  first 
laid.  Manifestly,  therefore,  now,  as  always,  whatever  property 
rights,  if  any,  which  the  owner  of  the  Mattie  L.  has  in  the  veins 
found  in  this  particular  area,  are  derived,  and  must  spring,  from  sec- 
tion 2322  of  the  Revised  Statutes  [U.  S.  Comp.  St.  1901,  p.  1425], 
and  that  section  confers  no  right  whatever  if  such  ground  has  been 
previously  patented  to  another. 

It  is  not  logical  to  hold  that  the  extralateral  rights  with  respect  to 
this  disputed  strip  are  to  be  defined  as  though  it  was  territory  beyond 
the  Mattie  L.  side  lines,  and  within  the  planes  of  its  end  lines,  when 
it  so  clearly  appears  that  it  is  wholly  within  the  surface  lines  of  that 
claim,  though  covered  by  a  senior  conflicting  location.  The  law  does 
not  require  that  the  bounding  lines  of  a  location  be  laid  wholly  upon 
its  own  territory,  and  so  as  to  include  only  the  surface  ground  actu- 
ally belonging  to  it,  but  they  may  be  laid  along  or  across  other  and 
senior  locations  belonging  to  another,  though,  of  course,  the  prior 
rights  of  the  latter  may  not  thereby  be  injuriously  afifected.     The 


540  SUB-SURFACE    RIGHTS. 

courts  cannot  make  a  location  or  change  the  boundaries  as  made  by 
the  locator  himself.  But  if  the  Mattie  L.  was  permitted  to  draw  in 
its  boundaries  so  as  to  include  therein  only  the  ground  actually  be- 
longing to  that  location,  and  so  as  to  exclude  all  that  belonging  to  the 
Anchor,  the  position  of  the  appellant  would  not  be  strengthened.  On 
the  contrary,  it  would  be  left  without  the  vestige  of  an  extralateral 
right.  For  then  the  westerly  legal  end  line  (the  located  westerly 
side  line)  of  the  Mattie  L.  would  be  coincident  with  the  northerly  side 
Hne,  the  easterly  end  line,  and  the  southerly  side  line  of  the  Anchor 
claim  for  a  certain  distance,  and  thus  would  be  not  a  straight,  but  a 
broken,  line,  and  the  westerly  end  line  of  the  location,  as  thus  laid, 
would  not  be  parallel  with  its  easterly  legal  end  line,  and  from  a  claim 
thus  irregularly  located  extralateral  rights  are  withheld.  The  law  is 
that  it  is  the  end  lines  alone,  not  they  and  some  other  lines,  which  de- 
fine the  extralateral  right,  and  they  must  be  straight  lines,  not  broken 
or  curved  ones.  VValrath  v.  Champion  Co.,  171  U.  S.  293,  18  Sup. 
Ct.  909,  43  L.  Ed.  170. 

To  hold  that  the  disputed  strip  is,  legally  speaking,  outside  the  side 
lines  of  the  Mattie  L.  location,  would  be  not  only  contrary  to  the 
physical  fact,  but  would  be  putting  a  premium  on  an  unlawful  act. 
It  is  clear  that  if  the  locators  of  the  Mattie  L.  had  observed  the  stat- 
ute, and  not  attempted  to  include  within  their  location  previously 
located  ground,  and  had  so  drawn  its  westerly  legal  end  line  as  to 
take  in  only  public  domain,  it  would  have  acquired,  by  such  compli- 
ance with  the  law,  no  right  whatever  to  the  ore  bodies  now  claimed. 
And  while,  if  the  Anchor  owner  made  no  objection,  the  boundary 
lines  of  the  Mattie  L.  might  be  laid  on  the  surface  of  the  Anchor,  still 
the  latter's  superior  right  might  not  thereby  be  jeopardized.  In 
neither  of  these  cases  could  extralateral  rights  be  asserted.  Can  it  be 
said  that,  because  the  Mattie  L.  has  so  run  its  surface  lines  as  to  in- 
clude therein  property  already  located  by  another,  that  it  thereby  has 
enlarged  its  rights  beyond  what  it  would  have  secured  had  it  obeyed 
the  provisions  of  the  statute  under  which  its  rights  are  obtained,  and 
by  which  they  are  defined  ?  In  other  words,  may  a  locator  of  a  min- 
ing claim  acquire  greater  rights  by  disobeying,  than  by  observing,  the 
statutes  of  the  United  States,  from  which  all  his  rights  are  derived  ? 
Until  a  higher  authority  so  commands,  we  shall  not  so  decide. 

Extralateral  rights,  as  to  the  ore  bodies  in  dispute,  might  be  exer- 
cised if  they  are  outside  the  side  lines  of  the  Mattie  L.  But  this  situ- 
ation can  exist  only  if  its  westerly  legal  end  line  be  drawn  in  to  ex- 
clude the  conflicting  territory.  In  that  event,  appellant  may  not  go 
westerly  beyond  that  boundary,  for  it  could  not,  in  pursuing  its  vein 
on  the  clip,  pass  beyond  the  planes  drawn  vertically  through  the  end 
lines  of  its  location.  Such  planes  would  constitute  a  barrier  beyond 
which  the  owner  of  the  Mattie  L.  could  not  go,  and  would  exclude 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  54^ 

from  the  exercise  of  its  extralateral  right  the  easterly  portion  of  the 
Anchor  claim  which  is  here  in  controversy. 

The  doctrine  of  extralateral  rights,  therefore,  does  not  apply ; 
neither  does  it  by  analogy  fit  this  case.  The  intraliminal  rights  of  the 
respective  parties  govern,  and  since  those  rights  of  the  junior  Mattie 
L.  claim  conflict  with,  and  are  interrupted  by,  the  senior  intraliminal 
rights  of  the  Anchor,  the  latter  prevails,  as  we  have  hereinabove  said 
in  discussing  another  contention  of  appellant. 

Counsel  rely  chiefly  upon  Colo.  Cent.  M.  Co.  v.  Turck,  54  Fed.  262, 
4  C.  C.  A.  313,  wherein  it  was  said  that,  where  the  apex  of  a  vein 
passes  out  of  the  side  line  of  a  claim  into  an  adjoining  claim,  the  lat- 
ter, though  junior  in  date,  gives  to  its  owner  the  right  to  follow  the 
vein  on  its  dip  underneath  the  senior  location.  That  is  the  case  most 
nearly  in  point,  but  it  does  not,  in  our  judgment,  apply  to  the  facts 
of  this  case.  Here  in  the  case  at  bar  the  segment  of  the  vein  claimed 
by  appellant  has  not  on  its  dip  passed  out  of  the  side  line  of  the  Mat- 
tie  L.  claim,  but  is  wholly  within  its  surface  boundaries.  In  the 
Turck  Case  the  Circuit  Court  of  Appeals  did  not  deny  to  a  senior  lo- 
cation so  much  of  the  vein  underground  as  it  had  the  apex  of._  That 
decision,  as  we  understand  it,  so  far  as  it  is  analogous  tp  this  case, 
was  that  one  who  locates  upon  the  apex  of  a  lode  may,  within  planes 
drawn  through  the  end  lines  of  the  location,  follow  the  vein  outside 
of  its  side  lines,  and  underneath  the  boundary  lines  of  an  adjoining 
proprietor,  when  the  latter  has  no  part  of  the  apex,  though  he  holds 
under  a  senior  patent.  But  here,  as  we  have  said,  the  vein  has  not  on 
its  dip  passed  beyond  the  side  lines  of  the  junior  Mattie  L.  location, 
but  the  ore  body  in  question  is  wholly  within  the  surface  lines  of  the 
junior  Mattie  L.,  and  also  inside  the' surface  lines  of  the  senior  An- 
chor, location.  Necessarily,  therefore,  it  seems  to  us  that  the  senior 
claim  has  the  right  to  it. 

A  fundamental  error  of  appellant  consists  in  the  attempts  to  apply 
the  doctrine  of  extralateral  rights  to  a  case  which  is  governed  by  the 
law  of  intraliminal  rights ;  in  seeking  to  apply  the  limitations  which 
are  applicable  to  outside  parts  of  veins — that  is.  veins  outside  the  side 
lines — to  the  parts  of  veins  wholly  within  such  lines.  This  we  believe 
is  contrary  to  section  2322,  and  opposed  to  the  authorities  herein- 
above cited.  Appellee  is  not  here  asserting  extralateral  rights  to  the 
secondary  vein,  but  bases  its  claims  thereto  solely  on  the  ground  that 
it  is  the  owner  of  the  senior  location,  and  for  that  reason  owns  the 
ore  found  within  its  surface  boundaries. 

But  if  the  doctrine  of  extralateral  rights  does  govern,  then  by  the 
decision  in  Walrath  v.  Champion  Co.,  72  Fed.  978,  19  C.  C.  A.  323, 
the  end  Hues,  and  no  other  lines,  of  the  Anchor  location  bound  its  ex- 
tralateral rights  in  the  vein,  a-b ;  hence  the  owner  of  the  Anchor 
would  be  entitled  to  all  ores  of  such  vein  found  within  planes  drawn 
downward  through  its  end  lines,  PO,  and  would  not  be  limited,  as  is 


542  SUB-SURFACE    RIGHTS. 

attempted  to  be  done  here  by  appellant,  by  planes  drawn  parallel  to 
the.  end  lines  at  the  points  x  and  h.  This  case  was  affirmed  by  the 
Supreme  Court  of  the  United  States  under  the  same  title  (171  U.  S. 
293,  18  Sup.  Ct.  909,  43  L.  Ed.  170),  and  as  to  this  point  was  referred 
to  with  approval  in  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  102 
Fed.  430,  42  C.  C.  A.  415.  We  are  aware  that  considerable  criticism 
has  been  made  of  this  decision.  In  Ajax  G.  M.  Co.  v.  Hiley  (Colo. 
Sup.)  72  Pac.  447,  62  L.  R.  A.  555,  we  decided  that  planes  drawn 
parallel  with  the  end  lines,  and  at  points  where  the  vein  passed 
through  the  side  lines  of  a  location,  bounded  the  extralateral  rights. 
We  so  limited  the  rule  because  that  was  the  extent  of  the  claim  made 
by  the  owner  of  the  extralateral  rights.  But  the  Supreme  Court  of 
the  United  States  has  gone  further,  and  said  that  these  bounding 
planes  must  be  coincident  with  the  planes  of  the  end  lines,  and  if  this 
case  demanded  the  application  of  that  rule  it  would  be  our  duty  to 
follow  it  if  we  believed  the  facts  of  this  case  are  such  as  to  bring  it 
within  the  principle  there  announced,  notwithstanding  the  adverse 
criticism  of  the  decision  by  the  learned  author  of  Lindley  on  Mines 
(2d  Ed.)  §  593  et  seq.  Its  application  would  give  the  ore  bodies  in 
dispute  here  to  the  Anchor  claim  as  the  owner  of  the  senior  extra- 
lateral  right. 

Our  conclusion  is  that  where  there  are  two  conflicting  lode  loca- 
tions, each  having  a  portion  of  the  apex  of  the  same  vein,  and  there 
is  a  conflict,  as  here,  with  respect  to  the  dip  rights  within  the  surface 
lines  of  the  two  locations,  the  senior  location  must  prevail. 

To  avoid,  if  possible,  misunderstanding,  we  further  observe  that  in 
this  case  a  portion  of  the  secondary  vein,  a-b,  is  within  the  surface 
boundaries  of  the  senior  Anchor  lode,  as  the  stipulated  facts  show. 
The  owner  of  that  claim,  to  say  the  least,  certainly  owns  all  the  min- 
eral of  such  vein  within  planes  extended  vertically  downwards  coin- 
cident with  its  end  lines  and  side  lines  to  the  extent,  at  least,  of  the 
length  of  the  apex  found  within  its  surface  boundaries.  The  case  has 
not  been  argued,  certainly  not  exclusively,  upon  the  proposition  that 
each  of  these  parties  owns  a  definite  portion  of  the  ore  found  within 
the  parallelogram,  c,  f,  e,  x,  to  each  belonging  such  part  of  the  vein 
as  it  has  the  apex  of,  but,  if  it  had  been,  there  is  not  sufficient  data  in 
the  record  to  show  what  portion,  or  how  much,  each  party  is  entitled 
to,  even  if  we  should  hold  that  the  Mattie  L.  owns  such  portion  of 
the  ores  within  that  parallelogram  as  it  has  the  apex  of  easterly  of  x. 
The  case  has  been  submitted  rather  upon  the  proposition  that  each 
party  owns  all  the  ores  found  within  this  parallelogram. 

In  thus  disposing  of  this  action,  we  have  not  overlooked,  though 
we  do  not  pass  upon,  the  contention  of  appellee  that  the  Mattie  L. 
can,  in  no  circumstances,  have  any  right,  intraliminal  or  extralateral, 
to  the  secondary  vein,  a-b,  because  it  is  substantially  parallel  with  the 
discovery  vein,  and  more  than  300  feet  distant  therefrom,  and  under 


EXTRALATERAL    RIGHTS    UNDER    ACT    1872.  543 

section  2320  [U.  S.  Comp.  St.  1901,  p.  1424]  such  other  vein  is  there- 
fore excluded  from  the  operation  of  the  patent,  though  it  may  be 
within  the  surface  Hues  of  the  claim  as  surveyed  and  located  on  the 
ground.  There  are  other  contentions  by  appellee  which,  in  the  view 
we  have  taken  of  the  case,  are  not  discussed. 

In  addition  to  the  authorities  already  cited,  we  refer  to  the  follow- 
ing, among  others,  which  in  principle  uphold  the  conclusions  here 
reached:  Iron  Silver  Alining  Co.  v.  Elgin  M.  &  S.  Co.,  118  U.  S. 
196,  6  Sup.  Ct.  1177,  30  L.  Ed.  98;  Del  Monte  M.  &.  M.  Co.  v.  Last 
Chance  M.  Co.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72. 

The  judgment  of  the  district  court  being  in  accordance  with  our 
conclusion,  it  is  affirmed.     Affirmed.-^ 


Section  5. — Cross  Veins  and  Veins  Uniting  in  the  Dips. 

FEDERAL  STATUTE. 

Sec.  2336.  Where  two  or  more  veins  intersect  or  cross  each  other,  priorit}' 
of  title  shall  govern,  and  such  prior  location  shall  be  entitled  to  all  ore  or 
mineral  contained  within  the  space  of  intersection;  but  the  subsequent  loca- 
tion shall  have  the  right  of  way  through  the  space  of  intersection  for  the 
purposes  of  the  convenient  working  of  the  mine.  And  where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the  vein  below  the  point  of 
union,  including  all  the  space  of  intersection.     Rev.   St.  U.   S.,   §  2336. 


ROXANNA  GOLD  MINING  &  TUNNELING  CO.  v.  CONE 

ET  AL. 

,1899.     Circuit  Court,  D.  Colorado.     100  Fed.  168. 

Bill  to  Restrain  Work  in  a  Aline.'^^ 

Hallett,  District  Judge  (orally). — This  is  a  bill  to  restrain  work 
upon  a  mine.  The  complainant  charges  that  it  owns  the  Mountain 
Monarch  lode  mining  claiin.  in  the  Cripple  Creek  district,  county  of 
Teller,  and  that  respondents  are  taking  ore  from  within  the  surface 
lines  at  a  considerable  depth  underground.  Complainant's  title  to 
the  Mountain  Monarch  claim  is  not  disputed,  nor  is  the  charge  denied 
that  the  respondents  are  removing  ore  from  the  claim.  Without 
stating  the  pleadings  at  length,  or  the  matters  set  forth  in  the  affida- 
vits in  respect  to  the  contentions  of  the  parties,  it  appears  that  re- 

"■^  See  an  article  on  "Lode  Locations"  by  Mr.  Henry  Newton  Arnold  in  22 
Harv.  Law  Rev.  266,  339,  where  both  the  extralateral  right  and  the  intralimital 
right  features  of  the  principal  case  are  discussed. 

"a  The  map  found  here  in  the  original  report  is  inserted  at  the  bottom  of 
p.  544. 


544 


SUB-SURFACE    RIGHTS. 


spondents  are  operating  from  another  claim  south  of  the  complain- 
ant's claim,  called  the  '"Doctor,"  and  that  they  have  descended  into 
the  ground  in  controversy,  following  the  Doctor  vein  from  the  Doc- 
tor location  upon  the  dip;  the  lode  which  in  the  pleadings  and  in 
the  affidavits  is  called  the  "Doctor"  vein  having  a  dip  to  the  north 
from  that  location.  The  position  of  the  respondents  is  that  there  is 
but  one  vein  having  a  continuous  course  through  the  Doctor  loca- 
tion, and  that  is  the  vein  which  they  have  followed  from  the  Doctor 
location  to  and  under  the  Mountain  Monarch  location.  Complain- 
ant contends  that  there  are  two  veins  in  that  locality,  one  which  is 
called  the  "Jack  Pot"  vein,  and  another  called  the  "Doctor"  vein, 
the  latter  being  the  one  under  which  respondents  claim.  The  Moun- 
tain Monarch  and  the  Doctor  claims  are  not  contiguous.  The  two 
locations  are  some  distance  apart,  and  in  the  space  intervening  be- 
tween the  two  locations  is  a  claim  called  the  "Elizabeth  Cooper." 
According  to  complainant's  theory,  one  of  these  veins — the  Doctor 
vein — has  an  apex  in  the  Doctor  location  at  the  point  in  controversy, 
and  from  the  west  end  of  that  location  to  a  distance  eastward  600 
feet  or  more.  The  other  vein,  called  the  "Jack  Pot,"  has  an  apex 
north  of  the  Doctor  location,  and  in  the  territory  of  the  Elizabeth 
Cooper  location,  at  the  west  end  line  of  the  Doctor,  which  enters 
the  Doctor  location  a  considerable  distance  north  of  the  west  end 
line,  and  through  the  north  side  line  of  the  Doctor,  and  passes  on 
through  that  claim.  Complainant  has  filed  a  map--''^  made  by  the  sur- 
veyors, who  support  complainant's  application  with  affidavits  which 
show  the  location  of  the  apex  of  each  of  these  veins,  the  Doctor  and 

=^b  The  following  is  the  map  referred  to  in  the  opinion : 


PLAN    MAP 
CxHieiT  /V> 


0OCTO«      Ao<v5-y/ 


CROSS    VEINS    AND   VEINS    UNITING    IN   DIPS.  545 

the  Jack  Pot.  Looking  at  this  map,  the  apex  of  the  Doctor  vein 
crosses  the  west  end  hne  of  the  Doctor  location,  and  passes  eastward 
through  that  location.  The  apex  of  the  Jack  Pot  vein  is  in  the  Eliza- 
beth Cooper  territory,  and  a  little  north  of  the  Doctor  location,  at  the 
west  end  line  of  that  location,  and  enters  the  Doctor  location  a  short 
distance  east  of  the  west  end  line  of  that  location,  and  through  the 
north  side  line.  Accepting  this  statement  of  fact  in  respect  to  the 
position  and  extension  of  these  two  veins,  it  seems  that  the  complain- 
ant has  not  the  apex  of  the  Doctor  vein  or  of  the  Jack  Pot  vein  at  any 
point  within  its  location. 

Upon  the  complainant's  case  as  presented,  and  without  referring 
to  the  defendants"  attitude  in  respect  to  the  condition  of  things 
underground,  these  two  veins  coming  together  on  their  dip  within 
the  territory  of  the  Mountain  Monarch,  the  ore  will  belong  in  that 
territory  to  the  owner  of  the  apex  of  one  or  the  other  of  these  veins. 
The  complainant,  not  asserting  or  claiming  title  through  and  by 
means  of  the  apex  of  one  or  the  other  of  the  veins,  fails  to  show 
title  as  to  either  of  them.  According  to  the  complainant's  state- 
ment of  the  position  of  the  Jack  Pot  vein,  the  Doctor  location  would 
have  no  right  to  follow  that  vein  into  the  ground  in  controversy. 
That  right  would  be  in  the  owners  of  the  Elizabeth  Cooper  location ; 
and  the  Doctor  locators,  the  respondents  in  this  bill,  would  have  a 
right,  owning  the  apex  within  their  territory,  to  follow  the  vein  into 
the  ground  in  controversy,  subject  to  the  prior  right  of  the  Elizabeth 
Cooper  locators,  assuming  that  to  be  the  older  of  the  two  locations. 

In  other  words,  upon  the  case  as  stated  by  the  complainant,  the 
ownership  of  this  ore  stands  between  the  Elizabeth  Cooper  people 
and  the  Doctor  people,  and  not  between  the  complainant  and  the 
Doctor  people.  The  existence  of  the  Doctor  vein  and  its  continuity 
to  the  place  in  controversy  seems  not  to  be  questioned  by  the  com- 
plainanf.  Complainant  relies  entirely  upon  the  circumstance,  which 
it  alleges  to  be  true,  that  there  are  two  veins  in  that  locality  which 
unite  at  the  tenth  level,  or  between  the  tenth  and  twelfth  levels,  in 
the  Mountain  Monarch  territory.  So  understood,  the  right  is  not 
with  the  complainant  in  either  case.  It  must  be  with  the  owners  of 
the  Elizabeth  Cooper  or  with  the  owners  of  the  Doctor  claim. 

In  this  view,  I  think  the  motion  for  injunction  should  be  denied. 
As  the  circumstance  of  the  location  and  situation  of  these  veins  is 
perhaps  not  very  fully  explained,  or  not  as  fully  explained  as  it  may 
be  at  some  other  time,  this  ruling  will  be  subject  to  the  right  of  the 
complainant  to  renew  its  motion,  if  any  different  condition  of  affairs 
shall  be  developed  in  the  territory  in  controversy 


35 — Mining  Law 


246  SUB-SURFACE    RIGHTS. 

On  Motion  for  Rehearing. 
(February  7,  1900.) 

Hallett,  District  Judge  (orally).'* — This  is  a  bill  to  enjoin  work 
in  a  mine.  A  motion  for  injunction  was  heard  and  denied  at  this 
term.  Counsel  have  within  a  few  days  back  reargued  the  questions 
presented  in  the  record.  In  this  argument  it  appears  that  the  opin- 
ion rendered  by  the  court  at  the  first  hearing  was  not  understood  by 
counsel.    *    '"    * 

The  decision  of  the  court  at  the  first  hearing  was  that  the  com- 
plainant, not  having  the  apex  of  either  vein,  was  in  no  position  to 
claim  the  ore  in  its  ground,  whether  it  should  be  in  one  vein  or  the 
other.  That  ruling  is  based  upon  the  last  clause  of  section  2336  of 
the  Revised  Statutes,  which  declares:  "Where  two  or  more  veins 
unite,  the  oldest  or  prior  location  shall  take  the  vein  below  the  point 
of  union,  including  all  the  space  of  intersection."  Under  this  stat- 
ute, it  was  said  that  the  controversy  must  lie  between  the  owners  of 
the  Elizabeth  Cooper  territory  and  the  owners  of  the  Doctor  terri- 
tory, and  that  would  depend  upon  whether  the  one  or  the  other  was 
the  older  location,  because  this  statute  says  that,  in  case  of  the  union 
of  veins  in  their  descent  into  the  earth,  the  oldest  or  prior  location 
shall  take  the  vein  below  the  point  of  union.  That  is  the  matter 
which  counsel  seem  not  to  have  understood. 

The  last  argument  by  complainant's  counsel  was  directed  to  the 
question  whether  the  Elizabeth  Cooper  locators  could  claim  the  ore 
in  the  Jack  Pot  vein  because  of  the  location  of  their  claim  in  such 
manner  that  the  apex  must  traverse  the  claim  from  side  to  side, 
and  not  through  the  end  lines.  That  is  a  matter  of  which  we  are 
in  no  situation  to  speak.  The  owners  of  the  Elizabeth  Cooper  claim 
are  not  parties  to  this  suit;  therefore  they  cannot  be  heard  in  this 
suit  to  say  whether  the  position  of  the  vein  is  here  or  there  in  their 
location.  Whether  it  be  true  that  the  Elizabeth  Cooper  claimants 
may  follow  this  vein  called  the  "Jack  Pot"  into  the  depths  of  the 
earth,  and  under  the  Mountain  Monarch  location,  or  not,  as  between 
these  parties  the  result  is  the  same.  If  the  Elizabeth  Cooper  people 
are  not  in  a  position  to  follow  the  Jack  Pot  vein  under  the  Mountain 
Monarch  location,  and  if  that  be  the  elder  location  as  between  that 
location  and  the  Doctor  location,  then  the  Doctor  location  may  hold 
the  ore  under  that  branch  of  the  vein  which  outcrops  in  its  territory. 
Nothing  is  alleged  against  the  outcrop  of  the  Doctor  vein.  It  ap- 
pears affirmatively  in  this  record  that  it  follows  the  course  of  the 
location  across  the  western  end  line  of  the  Doctor  claim,  and  for  600 
feet  east  from  that  point.  So  that  the  proposition  declared  at  the 
first  hearing  is  still  true, — the  ownership  of  the  ore  in  question  un- 
der the  Mountain  Monarch  location  is  a  matter  which  may  be  in 

^  Part  of  the  opinion  on  rehearing  is  omitted. 


CROSS    VEINS   AND   VEINS    UNITING    IN   DIPS.  547 

issue  between  the  Elizabeth  Cooper  people  and  the  Doctor  people, 
but  no  issue  can  be  raised  in  respect  to  it  by  the  Mountain  Monarch 
people,  from  the  facts  as  shown  in  this  record.  The  motion  for  re- 
hearina:  will  be  denied. 


LEE  ET  AL.  V.  STAHL. 
1889.     Supreme  Court  of  Colorado.     13  Colo.  174,  22  Pac.  436. 

Elliott,  J. — Ernest  Stahl,  the  plaintiff  below,  commenced  this  ac- 
tion in  1878,  alleging  his  ownership  in  fee  of  the  Lone  Tree  lode,  and 
complaining  that  the  defendants  had  ousted  him  therefrom,  and  still 
unlawfully  viithhold  the  possession  thereof.  The  case  has  been  sev- 
eral times  tried  in  the  district  court,  and  this  is  the  second  time  it  has 
been  before  this  court  on  appeal.  The  plaintiff's  patent  from  the 
L'nited  States  to  the  Lone  Tree  lode  shows  the  date  of  entry  at  the 
land-office  to  have  been  April  30,  1873.  Defendants'  patent  to  the 
Argentine  shows  the  date  of  entry  to  have  been  July  3,  1875.  De- 
fendants claim  to  have  made  the  discovery  and  location  of  the  Argen- 
tine in  1865,  prior  to  the  discovery  and  location  of  the  Lone  Tree, 
and  to  have  complied  with  all  the  laws,  state  and  federal,  and  all  the 
local  rules  and  regulations  respecting  such  locations ;  and  that  the 
vein  of  the  Argentine  is  the  premises  from  which  plaintiff"  claims  to 
have  been  ousted.  This  claim  was  denied  by  plaintiff.  The  territory 
described  in  the  two  patents  cross  each  other ;  but  whether  or  not 
there  is  an  actual  crossing  of  the  two  veins  within  the  limits  where 
the  two  patents  so  cross  each  other  was  the  principal  question  of  fact 
in  controversy  on  the  trial.  Defendants  did  not  adverse  plaintiff"'s 
application  for  a  patent. 

This  action  involves  the  construction  of  certain  sections  of  the  act 
of  congress  of  May  10,  1872,  relating  to  mineral  lands  of  the  United 
States,  and  particularly  sections  3,  6,  7,  14,  and  16,  which  are  here  re- 
ferred to  by  number  as  they  appear  in  the  United  States  Revised 
Statutes,  to-wit :  Section  2322,  which  provides,  in  substance,  that 
locators  of  mining  locations  heretofore  made,  or  which  shall  hereafter 
be  made,  on  any  mineral  vein,  lode,  or  ledge  situated  on  the  public 
domain,  their  heirs  and  assigns,  where  no  adverse  claim  exists  on 
May  10,  1872,  so  long  as  they  comply  with  the  laws  of  the  United 
States  and  with  local  regulations  governing  their  possessory  title, 
shall  have  the  exclusive  right  of  possession  and  enjoyment  of  all  the 
surface  included  within  the  lines  of  their  locations,  and  of  all  veins, 
lodes,  and  ledges,  throughout  their  entire  depth,  the  top  or  apex  of 
which  lies  inside  of  such  surface  lines,  extended  downward  vertically, 
although  such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  per- 
pendicular in  their  course  downward  as  to  extend  outside  the  vertical 


54« 


SUB-SURFACE    RIGHTS. 


side  lines  of  such  surface  locations.  Also  sections  2325  and  2326, 
which  prescribe  the  manner  in  which  patents  may  be  obtained  for 
lands  containing  valuable  deposits,  and  for  settling  conflicting  or  ad- 
verse claims  to  any  siicli  locations.  Also  section  2336,  which  pro- 
vides that,  '"where' two  or  more  veins  intersect  or  cross  each  other, 
prioritv  of  title  shall  govern,  and  such  prior  location  shall  be  entitled 
to  all  ore  or  mineral  contained  within  the  space  of  intersection ;  but 
the  subsequent  location  shall  have  the  right  of  way  through  the  space 
of  intersection  for  the  purposes  of  the  convenient  working  of  the 
mine.  And  where  two  or  more  veins  unite,  the  oldest  or  prior  loca- 
tion shall  take  the  vein  below  the  point  of  union,  including  all  the 
space  of  intersection."  Also  section  2344,  which  provides  that 
•"nothing  contained  in  this  chapter  shall  be  construed  to  impair^  in 
any  way  rights  or  interests  in  mining  property  acquired  under  exist- 
ing laws." 

As  we  understand  the  views  of  counsel,  it  is  contended  on  behalf 
of  plaintiff  that  defendants,  though  they  may  have  the  prior  location, 
vet,  not  having  adversed  plaintiff's  application  for  a  patent,  they  have 
forfeited  all  their  rights  within  the  surface  lines  of  plaintiff's  loca- 
tion ;  while  in  behalf  of  defendants  it  is  claimed  that  their  discovery 
and  location,  being  prior  to  that  of  plaintiff,  and  prior  to  the  passage 
of  the  act  of  May  10,  1872,  all  their  rights  and  interests  are  saved  by 
section  16  of  said  act.  Section  2344,  supra.  This  latter  view  seems 
to  be  supported  by  the  opinion  of  the  supreme  court  of  California  in 
the  case  of  Alining  Co.  v.  Spring,  59  Cal.  304.  But  this  court,  in 
Branagan  v.  Dulaney.  8  Colo.  408.  8  Pac.  Rep.  669,  as  well  as  on  the 
former  appeal  in  this  case,  (Lee  v.  Stahl,  9  Colo.  208,  11  Pac.  Rep. 
-]■]. )  has  announced  a  doctrine  somewhat  dift'erent  from  either  of  the 
foregoing  views.  The  former  opinion  in  this  case  should  now  be  re- 
garded as  "the  law  of  this  case,"  at  least  in  this  court,  so  far  as  it  is 
applicable  to  the  matters  assigned  for  error  on  this  appeal.  We 
would  not  feel  warranted  in  departing  from  it  in  determining  the 
rights  of  the  parties  to  this  action.  When  the  law  governing  a  case 
has  been  once  declared  by  the  opinion  of  an  appellate  court  on  a 
direct  appeal  or  writ  of  error,  such  opinion,  on  the  retrial  of  the  same 
case,  upon  the  same  state  of  facts,  is  higher  authority  than  the  rule  of 
stare  decisis:  it  is  generally  regarded  as  res  judicata,  so  far  as  the 
particular  action  is  concerned.  Davidson  v.  Dallas,  15  Cal.  75  ;  Tun- 
nel Co.  V.  Stranahan,  21  Cal.  548.  See  opinion  of  Mr.  Justice  Bel- 
ford  in  Mining  Co.  v.  Bank,  2  Colo.  266.  According  to  such  former 
opinion,  as  well  as  the  opinion  in  the  case  of  Branagan  v.  Dulaney, 
supra,  defendants,  having  secured  a  patent  for  the  Argentine  loca- 
tion, if  they  can  prove  that  the  vein  thereof  actually  intersects  or 
crosses  the  Lone  Tree  vein,  are  entitled  to  follow  the  vein  of  the  Ar- 
gentine, and  extract  the  ore  therefrom  within  the  side  lines  of  their 
own  location,  and  within  the  patented  limits  of  the  Lone  Tree  loca- 


CROSS    VEINS    AND   VEINS    UNITING    IN   DIPS.  549 

tion,  except  within  the  space  of  actual  intersection  of  the  two  veins, 
including  a  right  of  way  through  the  Lone  Tree  vein,  notwithstand- 
ing they  did  not  adverse  the  plaintiffs  application  for  a  patent  to  the 
Lone  Tree  lode'-"^ ;  but  they  cannot  maintain  the  right  to  the  mineral 
within  the  space  of  lode  intersection,  nor  other  rights  which  they  may 
have  had  by  virtue  of  a  prior  location,  because  they  did  not  assert 
and  secure  the  same  by  adversary  proceedings,  as  provided  by  the  act 
of  congress :  a  failure  so  to  assert  such  rights  being  deemed  a  waiver 
of  them.     Hence,  if  defendants  have  a  true  cross-vein,  plaintiff  can- 
not maintain  ejectment  therefor,  or  othenvise  restrain  them  from 
working  the  same,  so  long  as  they  confine  themselves  thereto,  and 
keep  within  the  side  lines  of  their  own  location,  and  do  not  attempt 
to  take  the  ore  from  the  space  of  lode  intersection  with  the  Lone 
Tree ;  for  to  this  extent  defendants"  cross-vein  is  excepted  out  of  the 
grant,  and  is  not  lost  by  a  failure  to  adverse  plaintitt's  application  for 
a  patent.     But  it  is  not  the  doctrine  of  this  court  that  section  2344 
ex  propria  vigore,  operates  to  reserve  out  of  the  grant  other  rights 
acquired  prior  to  the  passage  of  the  act  of  1872.  but  that  it  secures 
the  protection  of  such  rights  at  the  time  of  the  issuance  of  the  patent 
to  those  who  avail  themselves  of  the  adverse  procedure  prescribed  by 
the  act  itself.     It  is  also  claimed  in  behalf  of  defendants,  that  they 
are  entitled  to  the  same  rights,  without  adversing.  in  case  the  veins 
unite,  as  in  case  of  their  actual  crossing:  and  that  section  2336. 
supra,  should  be  so  construed.     The  argimient  is  that  the  words  "be- 
low the  point  of  union."  in  said  section,  apply  to  veins  uniting  on  the 
"strike,"  or  on  a  horizontal  extension,  as  well  as  to  veins  which  unite 
on  the  "dip,"  or  in  their  downward  course :  and  that  the  word  "be- 
low" should  be  construed  as  equivalent  to  "beyond."     But  this  is  not 
the  ordinars-  signification  of  the  word.     Both  words  are  of  common 
use.     Their  meaning  is  plain,  simple,  and  well  understood.     It  was 
well  known  at  the  date  of  the  passage  of  the  act  that  veins  unite  on 
their   horizontal   extension   as   well   as   in  their   downward   course. 
Hence  we  would  not  be  justiAed  in  assuming  that  congress  committed 
the  palpable  mistake  of  using  the  word  "below."  instead  of  the  word 
"beyond."  if  they  really  intended  to  give  tlie  preference  to  the  prior 
locator  in  case  of  veins  uniting  on  the  "strike."  as  well  as  on  tlie 
"dip."  after  the  point  of  union  is  reached,  without  regard  to  adverse 
proceedings.     The  reason  for  the  distinction  is  obvious.     In  contro- 
versies respecting  the  union  of  veins    on    their    horizontal    exten- 
sion   there    will    be    conflict    in    their    surface    limits,    but    veins 
mav   unite   in   their   downward    course   without   any    surface   con- 
flict.     Hence,    the    union    of    veins    of    the    former    class    being 
usuallv  on  or  near  tlie  surface,  the  conflict  will  ordinarily  be  appar- 

^Branasan  v.  Dulanev  was  overruled  bv  Calhoun  Gold  Min.  Co.  v.  Aiax 
Gold  Min-^Co..  27  Colo.  'l.  59  Pac.  607.  See  ante.  p.  286,  for  the  report  of  that 
case  in  the  Supreme  Coun  of  the  United  States. 


550  SUB-SURFACE    RIGHTS. 

ent  at  the  time  of  the  application  for  the  patent ;  and  it  was  evidently 
the  design  of  the  act  of  1872  to  have  all  conflicts,  so  far  as  practica- 
ble, settled  by  the  issuance  of  the  patent,  through  the  adverse  pro- 
ceedings therein  provided  for.  But  in  case  of  the  union  of  veins  in 
their  downward  course,  such  conflict  might  not  be  foreseen  or  an- 
ticipated at  the  time  of  the  application  for  the  patent.  Hence  the 
provision  in  the  latter  case,  that  when  the  point  of  union  is  reached 
the  oldest  or  prior  location  should  take  the  vein  below  such  point,  in- 
cluding all  the  space  of  intersection. 

There  was  no  evidence  or  attempt  to  show  that  the  Argentine  and 
Lone  Tree  veins  unite  with  each  other  in  their  downward  course. 
The  burden  of  proving  that  the  two  veins  actually  cross  each  other 
devolved  upon  the  defendants  ;  for,  having  failed  to  adverse  plaintiff's 
application  for  a  patent,  in  no  other  way  could  they  show  that  they 
had  prior  rights  within  the  limits  of  the  Lone  Tree  patent  which  were 
excepted  out  of  the  grant ;  hence  there  was  no  error  in  the  charge  of 
the  trial  court  in  this  regard.  Neither  was  it  technically  erroneous 
to  instruct  the  jury  that  their  verdict  should  also  be  for  the  plaintiff 
in  case  they  should  find  on  all  other  points  for  the  plaintiff,  even  if 
they  should  find  that  there  was  a  crossing  of  the  veins ;  for,  if  they 
should  find  on  all  other  points  for  the  plaintiff,  that  would  include  a 
finding  that  defendants  had  ousted  plaintiff  from  his  own  patented 
limits  at  some  place  other  than  where  the  Argentine  vein  actually 
crosses  the  same,  or  at  the  space  of  intersection,  for  purposes  other 
than  a  mere  right  of  way. 

Error  is  assigned  upon  the  following  instruction  given  on  the  trial : 
"If  the  jury  believe  from  the  evidence  that  the  Argentine  lode  runs 
westerly  from  its  discovery  into  the  Lone  Tree  lode,  and  verges  into 
it,  and  does  not  cross  it,  but  that  the  two  lodes  become  one  and  the 
same  lode,  that  in  such  case  the  oldest  patent  entry — that  is,  the  Lone 
Tree — is  entitled  to  the  vein  and  ground  as  far  as  the  apex  of  the 
vein  is  within  its  patent ;  and  this  is  the  case  whether  east  of  such 
point  there  are  two  lodes  or  only  one  lode."  Upon  the  theory  that 
only  cross-veins  and  veins  which  unite  in  their  dov/nward  course  are 
excepted  out  of  the  grant  in  case  of  a  failure  to  adverse,  this  instruc- 
tion is  not  erroneous. 

The  trial  court  also  charged  the  jury  to  the  effect  that  the  priority 
of  discovery  between  the  Argentine  and  the  Lone  Tree  lodes  had 
nothing  whatever  to  do  with  their  decision.  This  instruction  was  not 
error  when  we  consider  that  defendants'  rights,  if  they  have  any, 
must  be  saved  on  the  ground  that  they  have  a  cross-vein  which  is  ex- 
cepted out  of  plaintiff's  grant,  and  not  on  the  ground  of  a  prior  loca- 
tion. The  jury  were  instructed,  in  substance,  that  the  crossing  of 
lodes  does  not  mean  the  crossing  of  two  patents,  but  the  actual  cross- 
ing of  the  two  veins  themselves ;  and,  further,  that  if  they  should 
find  from  the  evidence  that  there  is  such  an  actual  crossing,  then  the 


EFFECT    OF    CONVEYANCES    ON    EXTRALATERAL    RIGHTS.  55 1 

defendants  are  entitled  to  their  own  vein  within  the  conflicting  area 
of  the  two  patents  through  the  space  of  intersection ;  but  that  such  a 
crossing  would  not  entitle  them  to  leave  their  own  patent  and  follow 
the  Lone  Tree  lode.  They  were  also  further  instructed  that,  if  they 
should  find  there  was  such  a  crossing,  to  render  a  special  verdict  to 
that  effect,  specifying  the  point  of  crossing.  These  instructions  were 
in  substantial  conformity  to  the  views  of  this  court  in  the  two  opin- 
ions above  cited.  As  the  jury  did  not  return  such  special  verdict, 
specifying  the  point  of  crossing,  we  must  assume  that  in  their  judg- 
ment the  evidence  did  not  warrant  such  a  finding.  Had  the  jury 
found  that  there  was  an  actual  crossing,  and  rendered  a  verdict  ac- 
cordingly, the  judgment  of  the  court  would  doubtless  have  been  such 
as  to  protect  the  defendants  in  working  their  cross-vein  in  accord- 
ance with  the  law  as  heretofore  laid  down  by  this  court.  As  the  ver- 
dict was  general  for  the  plaintiff,  we  see  no  error  in  the  judgment, 
and  it  is  accordingly  affirmed. 


CALHOUX  GOLD  AIIX.  CO.  v.  AJAX  GOLD  ^IIN.  CO. 
(See  ante,  page  286,  for  a  report  of  the  case.) 


Section  6. — The  Effect  of  Conveyances  on  Extralateral  Rights. 

EUREKA  COXSOL.  ^IIX.  CO.  v.  RICHMOXD  MIX.  CO. 

(See  ante,  p.  2,  for  a  report  of  the  case.) 

^lOXTAXA  ORE  PURCHASIXG  CO.  v.  BOSTOX  &  M. 
COXSOL.  COPPER  &  SILVER  MIX.  CO. 

1902.     Supreme  Court  of  Montana.     27  Mont.  288,  70  Pac.  114. 

Action  by  the  ^Montana  Ore  Purchasing  Company  against  the 
Boston  &  Montana  Consolidated  Copper  &  Silver  ^Mining  Company. 
From  a  judgment  in  favor  of  plaintiff,  defendant  appeals.    Modified. 

Brantly,  C.  J.-® — This  action  was  brought  to  recover  damages 
for  trespass  upon  a  portion  of  the  Johnstown  (patented)  lode  mining 
claim,  situate  in  Silver  Bow  county.  In  a  second  cause  of  action  the 
plaintiff  asks  that  its  title  be  quieted  to  the  premises  in  controversy, 
and  that  defendant  be  restrained  from  trespassing  pendente  lite,  and, 
upon  final  decree,  that  it  be  perpetually  enjoined  from  trespassing  or 

^  Parts  of  the  opinion  are  omitted. 


552 


SUB-SURFACE    RIGHTS. 


asserting  any  right  or  title  to  plaintiff's  property.  Before  the  cause 
was  set  for  trial,  the  plaintiff  was,  by  leave  of  court,  allowed  to  dis- 
miss the  first  cause  of  action  without  prejudice.  The  cause  then  pro- 
ceeded as  one  in  equity  to  determine  an  adverse  claim  made  by  de- 
fendant under  section  1310  of  the  Code  of  Civil  Procedure.     *     *     * 

Findings  were  made  in  favor  of  the  plaintiff,  and  judgment  en- 
tered thereon,  granting  the  relief  demanded.  From  the  judgment 
and  an  order  denying  a  new  trial,  the  defendant  has  appealed. 

To  elucidate  the  pleadings  and  illustrate  the  questions  at  issue, 
reference  may  be  had  to  the  subjoined  diagrams ;  the  one  represent- 
ing the  contention  of  the  plaintiff,  and  the  other  that  of  defendant : 


y 


H^G.H*,r^  L 


ilMQ^r^M  2. 


EFFECT   OF    CONVEYANCES    ON    EXTRALATERAL    RIGHTS.  553 

The  Pennsylvania  claim  was  located  on  June  i8,  1877,  and  patent 
issued  to  the  locators  on  April  9,  1886.    The  Rarus  was  located  on 
October  2,  1878,  and  a  patent  issued  on  June  5,  1884.    The  Johns- 
town was  located  on  January  4,  1879,  and  patent  issued  on  Novem- 
ber 15,  1884.   The  portion  of  the  Johnstown  indicated  by  the  letters 
A,  B,  C,  D,  E,  F,  which  will  hereafter  be  referred  to  as  the  "con- 
veyed portion,"  belongs  to  the  plaintiff.    The  plaintiff  is  also  the 
owner  of  the  Rarus.    For  some  reason  not  explained  in  this  record, 
the  Rarus  patent,  though  that  claim  is  older  than  the  Johnstown,  ex- 
cluded the  part  in  conflict  with  the  Johnstowai.   The  patentees  of  the 
latter  therefore  acquired  title  to  the  part  in  conflict.    The  portion  in 
conflict   between   the   Rarus   and   the   Pennsylvania  belongs   to  the 
plaintiff.    The  defendant  is  the  owner  of  the  Pennsylvania,  except 
the  portion  in  conflict,  and  also  of  the  Johnstown,  except  the  con- 
veyed portion.    The  Pennsylvania  and  Johnstown  were  located  by 
the  same  persons,  and  the  plaintiff"  and  the  defendant  obtained  title 
from  these  original  locators  by  mesne  conveyances.    The  triangular 
portion  of  the  Snow  Bird  between  the  Johnstown  and  the  Pennsyl- 
vania is  not  owned  by  either  of  the  parties.  The  controversy  involves 
the  situation  of  the  apex  of  the  veins  in  the  conveyed  portion,  and 
their  cot;itinuity  and  identity  to  the  ore  bodies  found  in  the  work-  . 
ings  down  to  the  900-foot  level  beneath  the  surface  of  the  Snow 
Bird,  the  northern  portion  of  the  Pennsylvania,  and  the  Johnstown 
south  of  the  conveyed  portion.    The  plaintiff"  claims  that  the  veins 
indicated  upon  diagram  i  dip  to  the  south  at  an  angle  of  about  70° 
from  the  horizon,  thus  departing  into  the  territory  belonging  to  the 
defendant ;  this  situation  being  made  apparent  from  the  identity  and 
continuity  of  the  veins  from  the  apex  down  to  the  900-foot  level  by 
numerous  workings  along  the  vein  upon  its  dip  and  strike.    It  claims 
that  it  is  entitled  to  these  veins  on  their  dip  and  along  the  strike  be- 
tween perpendicular  planes  descending  into  the  earth,  one  parallel 
with  the  east  end  line  of  the  Johnstown  at  a  point  where  the  veins 
pass  through  the  south  side  line  of  the  Johnstown,  and  the  other 
through  the  line  E,  F,  extended  in  its  own  direction  until  it  meets 
the  west  end  line  of  the  Johnstown  extended,  and  thence  in  the  di- 
rection of  that  line.   The  defendant's  contention  is  that  two  of  these 
veins  pass  on  their  strike  through  the  north  and  south  side  lines  of 
the  Johnstown,  that  plaintiff  has  no  extralateral  rights  upon  them 
in  the  direction  of  the  Pennsylvania  claim,  and  that  the  third  or  dis- 
covery vein  has  not  been  sufficiently  developed  to  indicate  what  plain- 
tiff's rights  are.    It  also  claims  that  the  ore  bodies  in  controversy  are 
found  in  veins  having  their  tops  or  apices  in  the  Pennsylvania,  and 
the  portion  of  the  Johnstown  outside  of  the  conveyed  portion,  and 
hence  that  the  plaintiff  has  no  right  to  them.     =^     *     *     The  plead- 
ings do  not  show  upon  what  the  defendant  bases  its  adverse  clairn, 
except  in  the  averment  that  the  ore  bodies  in  controversy  have  their 
apices  in  ground  belonging  to  the  defendant,  and  therefore  belong 


554 


SUB-SURFACE    RIGHTS. 


to  it  by  virtue  of  its  ownership  of  the  surface  under  which  they  are 
found.  That  the  plaintiff  was  at  the  beginning  of  the  action  in  pos- 
session of  the  conveyed  portion  of  the  Johnstown  is  admitted.  It  is 
also  practically  admitted  that  it  was  in  the  possession  of  the  work- 
ings and  ore  bodies  in  controversy,  but  it  is  averred  that  such  pos- 
session was  wrongful.     *     *     * 

The  plaintiff  alleged  title  and  possession  in  itself.  The  court  found 
the  allegation  true.  Indeed,  title  to  the  surface  of  the  conveyed  por- 
tion and  of  the  Rarus  and  to  the  apex  of  the  veins  is  admitted,  as  is 
also  the  possession  of  the  ore  bodies  in  controversy.  An  effort  was 
made  to  show  that  the  possession  of  the  latter  is  wrongful,  and 
therefore  does  not  rest  upon  the  legal  title,  by  evidence  that  two  of 
the  veins  are  so  situated  with  reference  to  the  end  lines  of  the  Johns- 
town claim  that  extralateral  rights  in  the  direction  of  defendant's 
ground  cannot  be  asserted,  and  that  development  of  the  third  is  not 
sufficient  to  demonstrate  its  continuity  and  identity  from  the  apex  to 
the  point  in  dispute.  An  attempt  was  also  made  to  show  that,  even 
if  plaintiff  has  extralateral  rights  in  the  direction  of  defendant's 
premises,  defendant  is  entitled  to  all  of  the  veins  below  a  certain 
point,  by  reason  of  a  union  of  them  with  certain  veins  having  their 
tops  or  apices  within  the  Pennsylvania  claim ;  it  being  older  in  the 
date  of  its  location  than  the  Johnstown  claim.  Of  course,  if  the  the- 
ory of  the  defendant  had  prevailed,  the  action  should  have  been  dis- 
missed. As  it  did  not,  the  result  must  necessarily  follow  that  the 
plaintiff  has  the  title  and  lawful  possession  of  the  veins  on  the  dip 
and  strike,  and  is  entitled  to  the  relief  demanded,  notwithstanding 
the  prima  facie  presumption  in  favor  of  defendant's  title  to  every- 
thing beneath  its  surface.  This  presumption  was  overturned  and  de- 
stroyed as  soon  as  the  identity  and  continuity  of  the  plaintiff's  veins 
from  their  apices  to  the  point  in  controversy  was  established ;  it  be- 
ing made  to  appear,  also,  that  plaintiff  had  a  right  to  follow  them 
on  their  dip.     *     *     * 

6.  The  court,  having  found  that  the  portions  of  the  vein  in  con- 
troversy belong  to  the  plaintiff  by  virtue  of  its  extralateral  rights, 
fixed  in  the  decree  the  perpendicular  planes  limiting  these  rights 
along  the  strike.  Toward  the  east  the  limit  was  fixed  at  a  plane 
passing  through  the  point  where  the  veins  depart  from  the  conveyed 
portion  through  the  south  side  line,  294  feet  west  of  the  east  end  line 
of  the  Johnstown,  and  parallel  with  it.  Toward  the  west  the  limit 
was  fixed  at  a  plane  passing  in  the  direction  of  the  line  E,  F,  until  it 
meets  the  plane  of  the  west  end  line  of  the  Johnstown,  and  thence 
in  the  direction  of  that  line  extended.  The  theory  upon  which  the 
latter  plane  was  thus  fixed  was  that  the  owners  of  the  Johnstown,  in 
fixing  the  end  lines  of  the  surface  boundaries  of  the  conveyed  por- 
tion as  they  did,  thus  indicated  their  intention  to  convey  to  the  plain- 
tiff all  the  veins  on  their  dip  in  the  same  direction,  and  that,  having 
subsequently  conveyed  to  the  defendant  the  remainder  of  the  surface 


EFFECT   OF    CONVEYANCES    ON    EXTRALATERAL    RIGHTS.  555 

of  the  claim,  it  obtained  only  such  portion  of  the  veins  as  was  not 
previously  conveyed.  The  defendant  contends  that  the  deeds  under 
which  the  plaintiff  obtained  title  do  not  convey  any  extralateral 
rights  at  all,  or,  if  they  do,  that  such  rights  should  be  limited  toward 
the  west  by  planes  parallel  with  the  end  lines  of  the  Johnstown,  pass- 
ing through  the  points  where  the  different  veins  pass  through  the 
end  line  E,  F,  and  extended  indefinitely  to  the  south  in  the  direction 
of  the  dotted  lines  L,  M,  and  F,  N. 

The  deeds  in  question  are  one  executed  by  the  patentees  to  the 
plaintiff's  grantors  on  March  7,  1883,  and  the  deed  to  the  plaintiff 
from  his  immediate  grantor  on  January  13,  1897.  The  former  grants 
all  the  right,  title,  and  interest  of  the  grantors  "to  that  certain  por- 
tion, claim,  and  mining  right,  title,  and  property,  on  that  certain 
ledge,  vein,  lode,  or  deposit  of  quartz  and  other  rock  in  place,  con- 
taining precious  metals  of  gold,  silver,  and  other  metals,  and  situated 
in  the  Summit  Valley  mining  district,  county  of  Silver  Bow,  and 
territory  of  Montana,  and  described  as  follows,  to  wit."  Then  fol- 
lows a  description  by  metes  and  bounds  of  the  conveyed  portion, 
after  which  the  deeds  continue :  "All  right,  title,  and  interest  that 
is  now  possessed,  together  with  any  that  may  hereafter  accrue, 
through  application  No.  1,265  niade  to  the  U.  S.  government  by  the 
grantors  herein  for  a  patent  for  lot  No.  173,  together  with  all  the 
dips,  spurs,  and  angles,  and  also  all  the  metals,  ores,  gold,  silver, 
and  metal  bearing  quartz,  rock,  and  earth  therein,  and  all  the  rights, 
privileges,  and  franchises  thereto  incident,  appendant,  and  appur- 
tenant, or  therewith  usually  had  and  enjoyed.''  The  latter  grants  to 
the  plaintiff'  all  the  right,  title,  and  interest  and  estate  of  the  grantor 
in  "all  that  portion  of  the  Johnstown  quartz  lode  mining  claim, 
designated  as  lot  number  one  hundred  seventy-three  (173)  in  town- 
ship three  (3)  north,  range  seven  (7)  west,  and  which  is  particu- 
larly bounded  and  described  as  follows,  to  wit."  Then  follows  a 
description  of  the  conveyed  portion  by  metes  and  bounds,  referred 
to  in  the  former  deed.  All  reference  to  metals,  ores,  quartz-bearing 
rock,  etc.,  is  omitted. 

In  determining  the  effect  of  these  conveyances,  regard  must  be 
had  not  only  to  the  terms  employed  in  them  and  the  surrounding  cir- 
cumstances, but  also  to  the  character  of  the  property  granted.  An 
ordinary  conveyance  of  agricultural  land  or  of  town  lots  describes 
the  subject  of  the  grant  merely  by  metes  and  bounds,  as  so  much  of 
the  earth's  surface.  Yet,  without  specific  mention,  the  grant  includes 
the  right  of  support  from  lands  adjacent  thereto,  as  well  as  every- 
thing above  and  beneath  the  surface,  unless  by  opposite  words  con- 
tained in  it,  some  reservation  is  made.  These  rights,  conveyed  with- 
out specific  description,  are  not  mere  incidents,  but  are  substantive 
parts  of  that  which  is  described,  to  the  extent  that  without  them 
the  subject  of  the  grant  is  not  susceptible  of  its  appropriate  use  and 
enjoyment;  in  other  words,  the  rights  conveyed  extend  far  beyond 


556  SUB-SURFACE    RIGHTS. 

the  specific  words  of  description  contained  in  the  deed.  Now,  a  pat- 
ent from  the  United  States  to  a  quartz  claim  conveys  everything 
which  is  granted  by  an  ordinary  conveyance  between  private  parties, 
and  in  many  cases  much  more.  If  the  conditions  of  the  law  have 
been  observed,  it  conveys,  in  addition  to  what  is  found  beneath  the 
surface  described  therein,  all  the  veins,  to  their  utmost  depths,  the 
tops  or  apices  of  which  are  found  within  the  surface  granted,  though 
they  so  far  depart  from  the  perpendicular  in  their  descent  into  the 
earth  as  to  extend  outside  of  the  vertical  side  lines  of  such  surface. 
As,  in  a  conveyance  of  agricultural  lands  or  town  lots,  everything  is 
presumed  to  be  granted  which  is  necessary  to  the  enjoyment  of  the 
species  of  property,  without  specific  description,  so  by  a  deed  to  a 
quartz  claim,  or  a  definite  portion  thereof,  as  such,  everything  neces- 
sary to  the  proper  and  full  enjoyment  of  that  species  of  property 
will  be  presumed  to  have  been  conveyed,  unless  there  be  employed 
specific  words  showing  the  intention  of  the  grantor  to  make  some 
reservation.  Extralateral  rights  are  not  a  mere  incident  or  appur- 
tenance, but  a  substantial  part  of  the  property  itself,  which  is  the 
subject  of  the  grant.  They  are  not  suspectible  of  a  more  definite 
description  than  that  contained  in  the  statute,  which  the  patent  fol- 
lows, because  the  conditions  beneath  the  surface  cannot  be  ascer- 
tained prior  to  the  issuance  of  patent ;  but  we  apprehend  that  they 
would  pass  from  the  government  to  the  grantee  under  a  patent  to 
a  quartz  claim,  as  such,  by  virtue  of  the  provisions  of  the  statute, 
even  though  the  patent  contained  no  express  reference  to  them  what- 
ever. In  the  first  deed  mentioned,  it  was  evidently  the  intention  of 
the  grantors  to  grant  no  less  a  right  than  they  would  themselves 
obtain  under  the  patent  which  they  had  applied  for,  because  the  lan- 
guage expressly  says  so.  They  were  conveying  a  portion  of  the 
Johnstown  claim,  including  a  definite,  fixed  portion  of  the  apex 
of  the  vein  along  its  strike.  They  must  therefore  be  conclusively  pre- 
sumed, in  the  absence  of  words  of  express  reservation,  to  have  in- 
tended to  convey  whatever  other  substantial  property  rights  were 
attached  to  such  portion  of  the  apex.  The  immediate  grantor  of  the 
plaintiff  therefore  obtained  all  the  rights  which  he  would  have  ob- 
tained by  a  patent  directly  to  himself.  The  second  deed  omits  any 
reference  to  the  veins,  or  the  dips,  spurs,  and  angles  thereof,  but 
it  is  apparent  therefrom  that  the  parties  were  dealing  with  the  prop- 
erty as  quartz  mining  property, — that  is,  as  a  definite  portion  of  the 
"Johnstown  quartz  lode  mining  claim"  ;  and,  from  what  has  already 
been  said,  the  presumption  must  obtain  that  the  grantor  intended  to 
part  with  all  his  right,  title,  interest,  and  estate  therein,  of  whatever 
character  and  description.  Hence  the  inevitable  conclusion  that  the 
plaintiff  is  vested  with  the  rights  obtained  by  the  patentees  of  the 
Johnstown  claim,  and  have  such  rights  upon  the  veins,  extralaterally, 
as  belong  to  the  apex  embraced  within  the  end  lines  of  the  conveyed 
portion.    The  fact  that  the  end  lines  of  the  conveyed  portion  were 


EFFECT   OF    CONVEYAXCES    ON    EXTRALATERAL   RIGHTS.  55/ 

fixed  as  they  were  does  not,  standing  alone,  justify  the  conclusion 
that  the  grantors  of  the  plaintiff  intended  thereby  to  limit  or  control 
in  any  way  the  extralateral  rights  as  between  the  grantees  of  the 
different  portions  of  the  claim. 

Plaintiff  cites  in  support  of  the  decree  the  case  of  Boston  &  M. 
Consol.  Copper  &  Silver  Min.  Co.  v.  Montana  Ore  Purchasing  Co. 
(C.  C.)  89  Fed.  529.  In  that  case  the  deed  of  March  7,  1883,  was 
considered  by  Judge  De  Haven,  and  the  conclusion  reached  by  him 
is  in  accord  with  the  plaintiff's  contention.  We  do  not  approve  the 
conclusion  reached  by  Judge  De  Haven.  It  is  founded  mainly  upon 
the  case  of  Stinchfield  v.  Gillis,  107  Cal.  86,  40  Pac.  98.  In  that  case 
it  is  said,  in  part,  that  "if  the  proprietor  of  a  tract  of  mining  ground, 
which  has  been  derived  through  several  locations,  should  dispose  of 
the  same  in  parcels,  irrespective  of  the  lines  of  such  locations,  the 
rights  of  his  grantees  would  be  measured  by  the  terms  of  their 
deeds."  The  question  in  the  case  before  us  does  not  seem  to  have 
been  definitely  presented  for  decision  by  the  facts,  and  what  was 
said  therein  was  apparently  obiter.  In  Richmond  Min.  Co.  v.  Eureka 
Min.  Co.,  103  U.  S.  89,  26  L.  Ed.  557,  also  cited  by  Judge  De  Haven, 
the  point,  though  adverted  to,  was  not  decided ;  the  facts  showing 
that  the  plane  of  the  division  line  agreed  upon  between  the  owners 
of  the  adjacent  mines  was  understood,  at  the  time  the  agreement  was 
made,  to  extend  downward  toward  the  center  of  the  earth.  This 
court  commented  somewhat  upon  the  decision  of  Judge  De  Haven 
in  the  Lexington  Case,  23  Mont.  177,  58  Pac.  iii,  75  Am.  St.  Rep. 
505,  and  expressed  the  opinion  that  it  is  not  sustained  by  the  cases 
cited.  We  concede  the  proposition  that  the  parties  may,  by  express 
or  implied  agreement,  fix  such  boundaries  for  themselves  as  they 
choose,  and,  further,  that  conveyances  of  patented  mining  property 
by  private  parties  are  not  controlled  by  any  provision  of  the  United 
States  mining  laws.  We  think,  nevertheless,  that  in  the  absence  of 
some  express  agreement,  or  one  strongly  implied  from  the  circum- 
stances, surface  boundary  lines  should  not  be  held  controlling.  There 
is  nothing  in  this  record  to  indicate  that,  at  the  time  the  first  deed 
was  made,  either  of  the  parties  knew  the  direction  of  the  dip  of  the 
veins ;  nor  is  there  any  presumption  that  they  had  such  knowledge. 
If  it  be  true  that  they  did  not,  what  intention  could  they  have  enter- 
tained with  reference  to  it?  If  the  dip  had  subsequently  been  found 
to  be  to  the  north,  then,  according  to  plaintiff's  view,  its  rights 
would  have  been  of  little  value,  because  they  would  have  been  cut  off 
entirely  by  the  line  E,  F,  extended  toward  the  north  a  short  distance 
beyond  the  north  line  of  the  Johnstown.  The  possibilities  of  the 
situation  will  be  realized  if  we  suppose  all  the  veins  to  pass  through 
the  line  F,  A.  In  the  absence  of  any  agreement,  express  or  implied, 
we  think  the  character  of  the  property  should  control,  and  that  only 
such  extralateral  rights  are  conveyed  as  appertain  to  the  portion  of 
the  apex  embraced  within  the  boundaries  of  the  conveyed  portion, 


558  SUB-SURFACE   RIGHTS. 

bounded  by  planes  parallel  with  the  end  lines  of  the  claim  as  pat- 
ented. This  theory  seems  to  us  to  be  entirely  just,  and  at  the  same 
time  to  avoid  the  result  that  would  follow  from  the  view  contended 
for  by  the  plaintiff ;  that  is,  that  the  extralateral  rights  conveyed  are 
left  to  depend  entirely  upon  the  subsequent  ascertainment  of  the  di- 
rection of  the  dip. 

A  suggestion  was  made  during  argument  that  the  west  end  line 
of  the  conveyed  portion  was  fixed  parallel  with  the  east  end  line 
of  the  Rarus  in  a  compromise  arrangement  in  the  settlement  of  the 
conflict  between  the  Rarus  and  the  Johnstown,  and  for  this  reason 
the  decree  is  correct  in  fixing  the  west  end  line  of  the  conveyed  por- 
tion as  the  proper  direction  of  plaintiff's  extralateral  rights.  There 
is  nothing  in  the  record  to  support  the  conclusion  that  such  a  com- 
promise was  ever  made,  except  the  fact  that  the  west  end  line  of  the 
conveyed  portion  is  apparently  parallel  with  the  east  end  line  of  the 
Rarus.  Even  if  it  were  true,  however,  that  such  a  compromise  was 
made,  the  result  would  be  that  both  end  lines  limiting  the  extralateral 
rights  would  take  their  direction  from  the  east  end  line  of  the  Rarus, 
and  not  from  that  of  the  Johnstown. 

In  our  opinion,  the  decree  should  be  modified  so  as  to  fix  the  west 
end  planes  in  the  direction  of  the  line  L,  M,  at  the  points  where  the 
different  veins  pass  through  the  line  E,  F;  the  plaintiff  conceding 
that  this  is  proper,  if,  upon  a  construction  of  the  deeds,  this  court 
concludes  that  the  trial  court  erred  in  fixing  the  west  end  plane  in 
the  direction  of  line  E,  F.  We  do  not  understand  that  the  court  be- 
low undertook  to  adjudge  any  rights  as  between  the  plaintiff  and  the 
owners  of  the  ground  to  the  east  of  the  Pennsylvania  claim.  The 
decree  has  not,  nor  could  it  have,  anything  to  do  with  conflicting 
rights  beneath  the  Michael  Devitt  claim,  because  they  are  not  within 
the  issues  in  this  case.  The  line  fixed  as  to  the  direction  of  the 
boundary  plane  to  the  east  was  intended  merely  to  give  the  direction 
of  plaintiff's  rights  beneath  the  surface  covered  by  the  Pennsylvania 
claim,  and  nothing  more.     *     *     * 

The  order  denying  a  new  trial  is  affirmed.  The  cause  is  remanded, 
with  directions  that  the  court  below  modify  the  decree  by  disallow- 
ing the  items  of  costs  complained  of,  and  by  limiting  the  extent  of 
the  plaintiff's  extralateral  rights  toward  the  west  by  fixing  the  west 
boundary  planes  in  the  direction  of  the  line  L,  M,  as  indicated  on 
diagram  i,  at  the  points  where  the  different  veins  pass  through  the 
line  E,  F.  When  so  modified,  the  decree  will  be  affirmed.  The  de- 
fendant will  recover  one-half  of  the  costs  of  appeal.  Modified  and 
affirmed. ^■^ 

"  The  concurring  opinions  of  Milbvirn,  J.,and  Pigott,  J.,  are  omitted. 


EFFECT   OF    CONVEYANCES    ON    EXTRALATERAL   RIGHTS.  559 

RILEY  ET  AL.  V.  NORTH  STAR  MINING  CO. 
1907.     Supreme  Court  of  California.     152  Cal.  549,  93  Pac.  194. 

Action  by  George  E.  Riley  and  another  against  North  Star  Min- 
ing Company.  From  a  judgment  for  defendant,  plaintiffs  appeal. 
Reversed  and  remanded. 

The  following  is  the  opinion  in  department  of  McFarland,  J., 
with  whom  Henshaw  and  Lorigan,  JJ.,  concurred. 

"This  action  was  brought  by  plaintiffs  as  owners  of  certain  mining 
ground  and  premises  to  recover  judgment  against  defendant  for  the 
value  of  gold-bearing  quartz  rock  alleged  to  have  been  wrongfully 
taken  by  defendant  from  said  premises.  By  its  answer  defendant 
denied  that  it  had  wrongfully  taken  any  rock  from  said  premises ; 
admitted  that  it  had  taken  rock,  which  it  avers  was  of  no  value,  from 
beneath  the  surface  of  plaintiffs'  mining  ground ;  but  avers  that  the 
rock  so  taken  was  from  a  lode  or  vein  of  quartz,  the  apex  of  which 
was  within  the  surface  ground  of  the  adjoining  mining  claim  of  de- 
fendant, and  which  in  its  downward  course  dipped  laterally  under 
plaintiffs'  ground,  and  that  defendant  had  the  right  to  follow  said 
vein  under  the  surface  of  plaintiffs'  ground  and  extract  rock  there- 
from. The  case  was  submitted  upon  a  stipulated  statement  of  facts. 
The  court  held  that  upon  the  agreed  facts  the  defendant  had  the 
right  to  do  the  acts  complained  of,  because  the  rock  taken  was  from 
a  lode  under  the  surface  of  plaintiffs'  ground  which  had  its  apex  in 
an  adjoining  mining  claim  of  defendant  and  dipped  laterally  under 
plaintiffs'  ground.  Upon  this  theory  objections  were  sustained  to 
evidence  offered  by  plaintiffs  to  show  the  value  of  the  rock  taken  by 
defendant.  A  nonsuit  was  granted,  and  judgment  rendered  for  de- 
fendant.  From  this  judginent  the  plaintiffs  appeal. 

"The  stipulated  facts  material  to  the  determination  of  this  appeal 
are  those  hereinafter  stated.  On  April  12,  1876,  the  government  of 
the  United  States  issued  its  patent  to  James  K.  Byrne  for  what  was 
known  and  designated  in  the  patent  as  the  'Massachusetts  Hill 
Quartz  Mine,'  situated  in  Grass  Valley  mining  district,  Nevada 
county,  Cal.  The  patent  describes  certain  surface  ground  containing 
about  50  acres  as  designated  in  the  official  survey,  which  accom- 
panied the  application  for  the  patent  of  said  mine ;  also  '2,138.4  linear 
feet  of  the  said  Massachusetts  Hill  quartz  mine,  vein,  lode,  ledge,  or 
deposit  for  the  length  hereinbefore  described  throughout  its  entire 
depth,  although  it  may  enter  the  land  adjoining';  and  also  any  other 
veins,  etc.,  throughout  their  entire  depth,  the  tops  or  apexes  of 
which  lie  within  the  exterior  lines  of  the  said  survey  within  the  end 
lines.  The  Massachusetts  Hill  quartz  mine  was  a  consolidation  of 
several  smaller  claims  which  had  been  located  before  Congress  had 
passed  any  statute  concerning  mining  claims  or  patents.  One  of  the 
consolidated  claims  was  known  as  the  'Ford  and  Reilly'  and  another, 


560  SUB-SURFACE    RIGHTS. 

the  'Stockbriclge.'  On  September  23,  1878,  James  K.  Byrne,  as  party 
of  the  first  part,  conveyed  by  deed  to  James  P.  Pollard  and  others  a 
part  of  the  said  Massachusetts  Hill  quartz  mine.  The  descriptive 
words  of  the  property  conveyed  are  as  follows :  'All  and  singular 
that  certain  portion  of  the  Massachusetts  Hill  mine  and  mining  claim 
conveyed  by  the  government  of  the  United  States  to  the  said  party 
of  the  first  part  by  the  patent  dated  April  12,  1876,  and  as  shown  by 
the  survey  and  plat  thereof  contained  and  set  out  in  said  patent, 
which  is  contained  and  included  within  the  following  lines  and  boun- 
daries, and  which  is  described  as  follows,  to  wit:  All  that  portion 
of  said  Massachusetts  mining  claim  which  lies  east  of  the  west  bank 
of  Wolf  creek  and  west  of  the  east  line  of  said  survey,  being  all  that 
portion  of  said  ground  and  mining  claim  embraced  within  said  pat- 
ent, and  the  survey  upon  which  the  same  is  founded,  which  lies  out- 
side of,  or  easterly  from,  that  part  of  said  Massachusetts  Hill  mine, 
known  as  the  "Ford  and  Reilly  location,"  as  the  same  was  located 
and  claimed  as  "square  claim,"  *  *  *  it  being  distinctly  under- 
stood that  this  conveyance  embraces  only  that  portion  of  the  said 
Massachusetts  Hill  mine,  as  surveyed,  applied  for,  and  included  in 
said  patent,  which  was  included  in  the  "Ford  and  Reilly"  survey 
outside  of  and  easterly  from  the  actual  lines  and  boundaries  of  the 
"Ford  and  Reilly"  square  location,  and  shall  not  be  so  construed  as 
to  include  any  portion  of  the  said  Massachusetts  Hill  mine,  so  pat- 
ented, which  was  heretofore  known  as  the  "Stockbridge  location." 
*  *  '■'•  Together  with  all  and  singular  the  tenements,  heredita- 
ments, and  appurtenances  thereunto  belonging,  or  in  anywise  apper- 
taining, and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof,  also  all  the  estate,  right,  title,  inter- 
est, mining  right,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  party  of  the  first  part, 
or  in  or  to  the  said  premises,  and  every  part  and  parcel  thereof,  with 
the  appurtenances.'  The  land  conveyed  was  a  small  strip,  less  than 
an  acre.  The  words  'mining  right'  were  not  part  of  the  printed 
form  of  deed  used,  but  were  written  there  by  the  grantor  Byrne. 
Plaintiff  afterwards  became  the  successor  in  interest  of  said  Pollard 
and  others  to  the  property  conveyed  by  said  deed,  and  defendant  be- 
came the  successor  of  Byrne  in  all  of  the  Massachusetts  mine  not 
conveyed  by  said  deed  ;  and  while  the  ownership  of  the  two  pieces 
of  property  was  thus  respectively  in  said  parties,  the  defendant, 
through  underground  works,  followed  the  Massachusetts  Hill  mine 
vein  under  the  surface  of  the  ground  described  in  the  said  deed 
from  Byrne,  and  took  rock  therefrom  under  the  surface  of  the 
ground,  and  for  the  rock  so  taken  this  action  is  brought.  Defendant 
contends  that  it  had  the  right  to  work  the  Massachusetts  Hill  vein 
where  it  lay  beneath  the  surface  of  the  land  conveyed  by  Byrne  to 
Pollard  and  others ;  and  plaintiff  contends  that  the  deed  from  Byrne 


EFFECT    OF    CONVEYANCES    ON    EXTRALATERAL    RIGHTS.  561 

conveyed  all  of  the  rock  beneath  the  surface  of  the  conveyed  land. 
In  our  opinion,  the  contention  of  plaintiffs  must  be  sustained. 

"A  good  deal  of  respondent's  brief  is  devoted  to  the  discussion  and 
elucidation  of  the  principle  in  mining-  law  and  property  that  the 
owner  of  a  quartz  lode  which  has  its  apex  in  the  surface  grant  has 
the  right  to  follow  and  take  rock  from  such  lode  wherever  it  goes 
in  its  downward  course,  though  it  dips  and  extends  beyond  his  side 
lines.  This  principle  must,  of  course,  be  accepted  as  beyond  con- 
troversy. There  is  also  considerable  argument  in  confutation  of 
appellants'  position  that  the  Massachusetts  Hill  mine  is  a  consolida- 
tion of  a  number  of  'square'  locations,  without  extralateral  rights. 
We  will  assume  for  the  purposes  of  this  decision  that  this  contention 
of  appellants  is  not  maintainable,  and  that,  under  the  United  States 
patent  to  Byrne,  all  ordinary  extralateral  rights  attached  to  the 
Massachusetts  mine,  and  that  the  Massachusetts  Hill  lode  had  its 
apex  in  the  surface  not  conveyed  by  the  deed,  and  dipped  easterly 
to  the  east  side  line  of  the  Massachusetts  surface  ground.  But,  in 
the  first  place,  it  can  hardly  be  said  that  the  question  of  extralateral 
rights  arises  in  this  case,  because  there  is  no  question  here  as  to  any 
rights  existing  outside  of  the  Massachusetts  Hill  side  lines,  all  rights 
involved  being  within  those  lines.  Respondent  seems  to  assume  that 
the  deed  to  Byrne  of  a  part  of  the  mine  created  new  extralateral 
rights  between  the  land  conveyed  and  that  not  conveyed ;  but,  assum- 
ing this  to  be  so,  the  question  is  not  what  is  the  mining  law  as  to 
extralateral  rights,  but  what  part  of  the  Massachusetts  mine  was 
conveyed  by  the  deed?  There  is  nothing  about  the  ownership  of 
that  part  of  a  quartz  lode  which  lies  at  a  considerable  distance  below 
the  surface  and  departs  from  the  perpendicular  more  sacred  than  the 
ownership  of  that  part  of  it  which  lies  near  or  at  the  surface.  Nei- 
ther is  inalienable.  Under  the  patent  Byrne  owned  all  the  surface 
of  the  Alassachusetts  mine  as  surveyed,  and  all  the  Massachusetts 
Hill  lode  which  was  within  the  surface  between  the  apex  and  the  east 
line  of  the  surface  ground,  and  he  could  have  conveyed  any  part  of 
that  property.  He  could  have  conveyed  the  deeper  part  of  the  lode 
without  conveying  any  surface  ground ;  he  could  have  conveyed  part 
of  the  surface  ground  reserving  all  of  the  lode  Vv'hich  was  under  it ; 
and  if  he  had  simply  conveyed  surface  ground  without  either  men- 
tioning or  reserving  rights  under  it,  then  there  might  have  been  a 
debatable  question  as  to  what  a  mere  conveyance  of  surface  ground 
conveyed.  The  conveyance,  however,  which  he  did  make,  was  dif- 
ferent from  any  above  supposed,  and  the  rights  of  the  parties  to  this 
action  depend  entirely  upon  the  meaning  and  effect  of  that  con- 
veyance. 

"What,  then,  did  the  deed  from  Byrne  to  Pollard  and  others  con- 
vey? It  is  to  be  noticed  that  there  is  no  reservation  on  the  face 
of  the  deed  itself  of  any  part  of  or  rights  in  the  property  described 
as  conveyed.   There  passed  therefore  to  the  grantees  all  property  in- 

36 — Mining  Law 


^62  SUB-SURFACE    RIGHTS. 

eluded  in  the  descriptive  language  of  the  conveyance.  That  language 
is  hereinbefore  given  in  full,  and  we  need  only  here  refer  to  the 
most  material  parts  of  it.  It  conveys  'all  and  singular  that  portion 
of  the  Massachusetts  Hill  mine  and  milling  claim  conveyed  by  the 
government  of  the  United  States  to  said  party  of  the  first  part  by 
the  patent  dated  April  12,  1870/  and  'all  that  portion  of  said  Massa- 
chusetts mining  claim  which  lies  east  of  the  west  bank  of  Wolf  creek 
and  west  of  the  east  line  of  said  survey,  being  all  that  portion  of 
said  ground  and  mining  claim  embraced  within  said  patent' ;  and  it 
also  contains  this  passage,  'it  being  distinctly  understood  that  this 
conveyance  embraces  only  that  portion  of  the  said  Massachusetts 
Hill  mine,  as  surveyed,  appHed  for,  and  included  in  said  patent, 
which  was  included  in  the  "Ford  and  Reilly"  survey  outside  of,' 
etc.,  together  with  all  mining  right,  property,  possession,  claim,  and 
demand  whatsoever  'of  the  said  party  of  the  first  part,  of  in  or  to 
the  said  premises,  and  every  part  and  parcel  thereof.'  Now,  what 
was  the  'Massachusetts  Hill  mine  and  mining  claim'  conveyed  by 
the  government  of  the  United  States  to  the  said  party  of  the  first 
part  by  the  patent  dated  April  12,  1876?  It  included,  as  described  in 
the  patent,  'the  Massachusetts  Hill  quartz  mine'  with  certain  de- 
scribed surface  ground,  and  2,138.4  linear  feet  of  the  said  Massachu- 
setts 'mine,  vein,  lode,  ledge,  or  deposit.'  Therefore,  when  Byrne 
conveyed  to  Pollard  and  others  'all  that  part  of  the  Massachusetts 
Hill  mining  claim  which  lies  east  of  the  west  line  of  Wolf  creek, 
west  of  the  east  line  of  said  survey,'  etc.,  together  with  all  'the  min- 
ing right,  property,  claim,  and  demand  of  the  party  of  the  first  part, 
of,  in  or  to  the  said  premises,  and  every  part  and  parcel  thereof,  with 
the  appurtenances ;'  he  clearly  conveyed  to  the  grantees  all  the 
property  and  right  of  every  kind  which  he  had  in  that  part  of  the 
mine  lying  between  the  west  bank  of  Wolf  creek  and  the  east  line  of 
the  surface  ground.  A  part  of  that  portion  of  the  mine  lying  east 
of  the  west  bank  of  Wolf  creek  was  that  part  of  the  Massachusetts 
Hill  quartz  lode  which  was  within  that  boundary,  and  it  was  con- 
veyed as  completely  as  a  deed  of  the  whole  Massachusetts  Hill  lode 
mine  would  have  conveyed  all  the  said  mine.  There  was  no  lan- 
guage of  reservation ;  and  the  words  employed  included  every  kind 
of  property  and  right  which  the  grantor  had  in  that  part  of  the 
mine  mentioned.  We  do  not  attach  quite  as  much  importance  to  the 
words  'mining  right'  as  is  given  it  by  appellants,  for  the  previous 
language  of  the  deed  would  have  been  clearly  sufficient  to  include  all 
the  grantor's  mining  right  in  the  land  conveyed  without  the  subse- 
quent express  use  of  those  words.  However,  those  words  are  in  en- 
tire accord  with  the  previous  language,  and,  although  not  necessary, 
may  be  considered  as  having  some  significance  as  'further  assur- 
ances' of  the  thing  granted.  After  a  conveyance  of  all  that  part  of 
the  Massachusetts  mine  lying  east  of  the  line  mentioned,  together 
with  all  of  the  grantor's  'mining  right'  therein,  there  was  surely 


EFFECT    OF    CONVEYANCES    ON    EXTR,\LATERAL   RIGHTS.  563 

nothing  left  to  the  grantor  of  that  part  of  said  mine.  Of  course, 
the  previous  language  in  a  deed  might  be  such  as  to  limit  the  sub- 
sequent use  of  the  words  'mining  right' ;  but  there  was  no  language 
used  in  the  deed  here  in  question  suggesting  such  limitation. 

"Respondent  contends  that  the  deed  should  be  construed  in  the 
light  of  certain  facts  and  a  certain  preliminary  contract  between 
Byrne  and  the  said  Pollard.  Those  facts  and  that  contract  were  as 
follows :  After  Byrne  had  made  his  application  for  a  United  States 
patent  for  the  Massachusetts  Hill  mine  said  Pollard  asserted  the 
ownership  of  a  mining  claim  called  the  'Norwich,'  which  conflicted 
with  a  part  of  the  Massachusetts  claim  as  surveyed.  Thereafter,  to 
avoid  the  necessity  of  an  adverse  suit,  a  written  agreement  w'as  en- 
tered into  between  Byrne  and  Pollard,  by  which  Pollard  agreed  not 
to  file  an  adverse  claim,  and  Byrne  agreed  that  after  he  had  received 
a  patent  for  the  Massachusetts  Hill  mine  he  would  convey  a  certain 
part  thereof  to  Pollard.  Respondent  contends  that  by  this  contract 
Byrne  was  to  convey  only  a  part  of  the  surface  of  the  Massachusetts 
Hill  mine,  and  was  not  to  convey  any  part  of  the  Massachusetts  Hill 
lode  lying  under  such  surface,  and  that,  therefore,  the  subsequent 
deed,  whatever  its  language,  is  to  be  construed  as  not  conveying  any 
part  of  the  Massachusetts  Hill  mine  except  such  surface.  But,  in  the 
first  place,  the  said  contract  is  by  no  means  certain  as  to  the  precise 
property  Byrne  was  to  convey.  It  clearly  contains  no  reservation  of 
any  underground  rights.  By  the  contract  Byrne  agreed  to  convey 
to  Pollard  'that  portion  of  said  ground  embraced  wathin  lateral  lines 
drawn  easterly  from  the  northeast  corner  of  the  "Ford  and  Reilly  lo- 
cation" and  the  northeast  corner  of  the  "Stockbridge  location,"  re- 
spectively ;  it  being  distinctly  understood  that  this  agreement  em- 
braces only  that  portion  of  the  said  Massachusetts  Hill  mine  as  sur- 
veyed and  applied  for,  which  was  included  in  the  "Ford  and  Reilly" 
survey,  outside  of  and  easterly  from  the  actual  lines  and  boundaries 
of  the  "Ford  and  Reilly  square  location."  '  It  thus  refers  to  a  part 
of  the  Massachusetts  Hill  mine  as  well  as  to  the  surface  ground. 
Moreover,  it  may  have  been  understood  at  that  time  that  as  the  Ford 
and  Reilly  was  a  'square'  claim  a  conveyance  of  surface  ground  in- 
cluded all  beneath  it.  At  all  events  there  w'as  no  absolute  incon- 
sistency between  the  contract  and  the  deed  which  was  afterwards 
executed.  Moreover,  if  there  had  been  any  such  inconsistency,  the 
deed  would  prevail.  In  construing  a  written  instrument,  it  is  per- 
missible to  consider  preceding  facts  and  surrounding  circumstances 
only  when  the  instrument  is  itself  ambiguous  and  uncertain.  Where, 
as  in  the  case  at  bar,  the  language  used  in  the  instrument  in  question 
is  clear  and  certain,  such  language  must  govern.  When  property  is 
clearly  granted  by  a  deed,  the  title  of  the  grantee  cannot  be  disturbed 
by  extrinsic  evidence  tending  to  show  that  the  grantor  did  not  intend 
to  convey  such  property.  Of  course,  in  a  proper  case  and  by  a  proper 


5^4 


SUB-SURFACE    RIGHTS. 


proceeding,  a  deed  may  be  reformed  or  declared  void  on  account  of 
mistake  or  fraud ;  but  there  is  no  such  issue  in  the  case  at  bar. 

"Counsel  on  each  side  have  cited  a  number  of  authorities,  but  we 
do  not  deem  it  necessary  to  notice  them  at  length,  for  they  are  not 
determinative  of  the  question  here  involved,  and  deal  with  facts  dif- 
ferent from  those  of  the  case  at  bar.  However,  the  views  herein- 
above expressed  were  substantially  declared  in  the  case  of  Central 
Eureka  Co.  v.  E.  Central  Eureka  Co.,  146  Cal.  156,  79  Pac.  834,  9 
L.  R.  A.  (N.  S.)  940.  The  question  there  was  whether  a  conveyance 
of  ground  by  metes  and  bounds  carried  a  part  of  the  Summit  quartz 
mining  lode,  which  dipped  under  it,  and  the  court  held  that  it  did 
not.  But  the  court  said :  'unquestionably  it  would  have  been  con- 
veyed by  any  instrument  purporting  to  grant  the  Summit  quartz 
mining  claim,  or  the  Summit  quartz  mining  ground,  for  it  was  part 
and  parcel  thereof.'  Our  conclusion  is  that  the  court  below  erred  in 
sustaining  objections  to  evidence  offered  by  appellants  to  show  the 
value  of  the  rock  taken  from  the  mining  ground  by  respondent,  and 
in  granting  a  nonsuit  and  rendering  judgment  for  respondent.  Upon 
the  agreed  statement  of  facts,  if  the  rock  taken  by  respondent  from 
appellants'  land  was  of  any  pecuniary  value  as  gold-bearing  quartz, 
then  appellants  were  entitled  to  judgment  for  such  value. 

"The  judgment  appealed  from  is  reversed,  and  the  cause  re- 
manded, for  further  proceedings  in  accordance  with  this  opinion." 

Pkr  Curiam. — After  a  reconsideration  of  this  case  in  bank  we  are 
satisfied  with  the  conclusion  reached  and  the  opinion  delivered  in 
department;  and  for  the  reasons  given  in  said  opinion  the  judgment 
appealed  from  is  reversed,  and  the  cause  remanded,  for  further  pro- 
ceedings as  directed  in  said  opinion.-'* 

Bf.attv,  C.  J. — I  dissent.  The  construction  given  to  the  convey- 
ance under  which  the  appellants  claim  can  be  upheld  only  by  disre- 
garding the  radical  difference  between  the  relation  of  a  mining  claim 
to  its  surface  description,  and  that  which  is  included  in  the  surface 
description  of  other  lands.  As  to  lands  generally,  a  conveyance  in- 
cludes everything  above  and  below  the  surface  of  the  earth  within 
vertical  planes  conforming  to  the  surface  lines,  but  this  is  not  true 
of   mining  claims.    The  patent    from   the   United    States   does   not 

""In  settlement  of  disputed  title  between  the  Nine  Hour  and  St.  Louis 
Lodes,  The  Alontana  Co.  conveyed  to  the  St.  Louis  Co.  a  strip  of  the  dis- 
puted ground  30  feet  wide  by  400  feet  in  length.  The  deed  conveyed  the 
strip  with  the  dips,  spurs  and  angles,  and  'all  the  mineral  therein  contained.' 
Afterwards  a  vein  not  then  known  to  exist  was  found  to  dip  underneath  this 
strip.  The  federal  courts  below  allowed  the  grantor  to  work  this  vein  under- 
neath the  strip,  but  the  Supreme  Court  finally  held  that  the  words  above 
quoted  were  a  common  law  grant  and  covered  the  ore  in  this  dipping  vein 
between  the  vertical  lines  of  the  strip.  And  they  further  intimated  that  the 
grantor  might  have  a  right  of  way  to  get  at  its  vein  beyond  the  strip.  Mon- 
tana M.  Co.  V.  St.  Louis  M.  Co..  204  U.  S.  204;  overruling  102  F.  430  and 
104  F.  664."— Morrison's  Mining  Rights,  14  ed.  312-313. 


EFFECT   OF    CONVEYANCES   ON    EXTRALATERAL   RIGHTS.  565 

transfer  to  the  patentee  everything  within  the  vertical  planes  ex- 
tended downwardly  through  his  end  and  side  lines,  and  it  does 
transfer  things  outside  of  such  planes ;  viz.,  all  parts  of  veins  having 
their  apices  within  his  surface  lines,  though  in  their  descent  they  are 
carried  by  their  dip  beyond  the  planes  of  his  side  lines.  This  is  the 
effect  of  a  patent  for  the  entire  claim ;  and  when  the  patentee  con- 
veys a  part  of  that  claim  described  by  surface  lines,  the  necessary 
implication  is  that  he  reserves  all  that  is  embraced  within  the  lines 
of  that  portion  of  the  surface  claim  not  conveyed,  including  the  ex- 
tralateral  dip  of  all  veins  having  their  apices  within  the  lines  of  the 
part  so  reserved.  To  give  a  deed  for  a  part  of  a  mining  claim  any 
other  construction  is  to  defeat  the  intention  of  the  parties  99  times 
in  100,  and  the'circumstances  under  which  the  deed  in  question  here 
was  given  afford  ample  proof  that  in  this  case  a  construction  is  given 
to  the  deed  which  neither  grantor  nor  grantee  intended. 


CHAPTER  VIII. 

ADVERSE  CLAIMS  AND  PROTESTS  AGAINST  THE  ISSUANCE  OF  PATENTS.^ 
FEDERAL  STATUTES. 

Sec.  2325.  A  patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner :  Any  person,  association,  or  cor- 
poration authorized  to  locate  a  claim  under  this  chapter,  having  claimed  and 
located  a  piece  of  land  for  such  purposes,  who  has,  or  have,  complied  with  the 
terms  of  this  chapter,  may  file  in  the  proper  land  office  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a  plat  and  field 
notes  of  the  claim  or  claims  in  common,  made  by  or  under  the  direction  of 
the  United  States  surveyor-general,  showing  accurately  the  boundaries  of 
the  claim  or  claims,  which  shall  be  distinctly  marked  by  monuments  on  the 
ground,  and  shall  post  a  copy  of  such  plat,  together  with  a  notice  of  such  ap- 
plication for  a  patent,  in  a  conspicuous  place  on  the  land  embraced  in  such 
plat  previous  to  the  filing  of  the  application  for  a  patent,  and  shall  file  an 
affidavit  of  at  least  two  persons  that  such  notice  has  been  duly  posted,  and 
shall  file  a  copy  of  the  notice  in  such  land  office,  and  shall  thereupon  be  en- 
titled to  a  patent  for  the  land,  in  the  manner  following:  The  register  of  the 
land  office,  upon  the  filing  of  such  application,  plat,  field  notes,  notices,  and 
affidavits,  shall  publish  a  notice  that  such  application  has  been  made,  for  the 
period  of  sixty  days,  in  a  newspaper  to  be  by  him  designated  as  published 
nearest  to  such  claim ;  and  he  shall  also  post  such  notice  in  his  office  for  the 
same  period.  The  claimant  at  the  time  of  filing  this  application,  or  at  any 
time  thereafter,  within  the  sixty  days  of  publication,  shall  file  with  the 
register  a  certificate  of  the  United  States  surveyor-general  that  five  hundred 
dollars'  worth  of  labor  has  been  expended  or  improvements  made  upon  the 
claim  by  himself  or  grantors ;  that  the  plat  is  correct,  with  such  further  de- 
scription by  such  reference  to  natural  objects  or  permanent  monuments  as 
shall  identify  the  claim,  and  furnish  an  accurate  description  to  be  incorporated 
in  the  patent.  At  the  expiration  of  the  sixty  days  of  publication  the  claimant 
shall  file  his  affidavit,  showing  that  the  plat  and  notice  have  been  posted  in 
a  conspicuous  place  on  the  claim  during  such  period  of  publication.  If  no 
adverse  claim  shall  have  been  filed  with  the  register  and  the  receiver  of  the 
proper  land  office  at  the  expiration  of  the  sixty  days  of  publication,  it  shall 
be  assumed  that  the  applicant  is  entitled  to  a  patent,  upon  the  payment  to 
the  proper  officer  of  five  dollars  per  acre,  and  that  no  adverse  claim  exists ; 
and  thereafter  no  objection  from  third  parties  to  the  issuance  of  a  patent  shall 
be  heard,  except  it  be  shown  that  the  applicant  has  failed  to  comply  wath  the 
terms  of  this  chapter. 

Sec.  2326.     Where  an  adverse  claim  is  filed  during  the  period  of  publica- 

^  The  steps  necessary  to  be  taken  to  patent  mining  claims  cannot  be  ex- 
hibited as  advantageously  in  a  case  book  as  in  a  text  book  without  taking 
an  undue  amount  of  space  for  the  purpose,  and  accordingly  the  student  is 
recommended  to  look  at  the  forms  and  procedure  as  set  forth  in  the  latest 
edition  of  Morrison's  Mining  Rights,  and  to  consult  chapters  XVIII-XIX  of 
Costigan  on  Mining  Law.  It  seems  desirable,  however,  to  insert  a  few  cases 
to  show  the  nature  and  need  of  adverse  claims  and  of  protests. 

566 


ADVERSE    CLAIMS    AND    PROTESTS.  567 

tion,  it  shall  be  upon  oath  of  the  person  or  persons  making  the  same,  and 
shall  show  the  nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all 
proceedings,  except  the  publication  of  notice  and  making  and  filing  of  the 
affidavit  thereof,  shall  be  stayed  until  the  controversy  shall  have  been  settled 
or  decided  by  a  court  of  competent  jurisdiction,  or  the  adverse  claim  waived. 
It  shall  be  the  duty  of  the  adverse  claimant,  within  thirty  days  after  filing 
his  claim,  to  commence  proceedings  in  a  court  of  competent  jurisdiction,  to 
determine  the  question  of  the  right  of  possession,  and  prosecute  the  same  with 
reasonable  diligence  to  final  judgment;  and  a  failure  so  to  do  shall  be  a 
waiver  of  his  adverse  claim.  After  such  judgment  shall  have  been  rendered, 
the  party  entitled  to  the  possession  of  the  claim,  or  any  portion  thereof,  may, 
without  giving  further  notice,  file  a  certified  copy  of  the  judgment-roll  with 
the  register  of  the  land  office,  together  with  the  certificate  of  the  surveyor- 
general  that  the  requisite  amount  of  labor  has  been  expended  or  improvements 
made  thereon,  and  the  description  required  in  other  cases,  and  shall  pay  to 
the  receiver  five  dollars  per  acre  for  his  claim,  together  with  the  proper 
fees,  whereupon  the  whole  proceedings  and  the  judgment-roll  shall  be  cer- 
tified by  the  register  to  the  Commissioner  of  the  General  Land  Office,  and  a 
patent  shall  issue  thereon  for  the  claim,  or  such  portion  thereof  as  the  appli- 
cant shall  appear,  from  the  decision  of  the  court,  to  rightly  possess.  If  it  ap- 
pears frorn  the  decision  of  the  court  that  several  parties  are  entitled  to  sepa- 
rate and  different  portions  of  the  claim,  each  party  may  pay  for  his  portion  of 
the  claim  with  the  proper  fees,  and  file  the  certificate  and  description  by  the 
surveyor-general,  whereupon  the  register  shall  certify  the  proceedings  and 
judgment-roll  to  the  Commissioner  of  the  General  Land  Office,  as  in  the 
preceding  case,  and  patents  shall  issue  to  the  several  parties  according  to 
their  respective  rights.  Nothing  herein  contained  shall  be  construed  to  pre- 
vent the  alienation  of  a  title  conveyed  by  a  patent  for  a  mining  claim  to  any 
person  whatever.     Rev.  St.  U.  S.  §§  2325,  2326. 

Be  it  enacted _  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  if,  in  any  action  brought  pur- 
suant to  section  twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes, 
title  to  the  ground  in  controversy  shall  not  be  established  by  either  party, 
the  jury  shall  so  find,  and  judgment  shall  be  entered  according  to  the  verdict. 
In  such  case  costs  shall  not  be  allowed  to  either  party,  and  the  claimant  shall 
not  proceed  in  the  land  office  or  be  entitled  to  a  patent  for  the  ground  in 
controversy  until  he  shall  have  perfected  his  title.— Act  March  3,  1881,  21 
Stat.  L.  505. 

GENERAL  LAND  OFFICE  REGULATION. 

53.  At  any  tirne  prior  to  the  issuance  of  patent  protest  may  be  filed 
against  the  patenting  of  the  claim  as  applied  for,  upon  any  ground  tending 
to  show  that  the  applicant  has  failed  to  comply  with  the  law  in  any  matter 
essential  to  a  valid  entry  under  the  patent  proceedings.  Such  protest  can- 
not, however,  be  made  the  means  of  preserving  a  surface  conflict  lost  by 
failure  to  adverse  or  lost  by  the  judgment  of  the  court  in  an  adverse  suit. 
One  holding  a  present  joint  interest  in  a  mineral  location  included  in  an  ap- 
plication for  patent  who  is  excluded  from  the  application,  so  that  his  interest 
would  not  be  protected  by  the  issue  of  patent  thereon,  may  protest  against 
the  issuance  of  a  patent  as  applied  for,  setting  forth  in  such  protest  the  na- 
ture and  extent  of  his  interest  in  such  location,  and  such  a  protestant  will  be 
deemed  a  party  in  interest  entitled  to  appeal.  This  results  from  the  holding 
that  a  co-owner  excluded  from  an  application  for  patent  does  not  have  an 
'adverse'  claim  within  the  meaning  of  sections  2325  and  2326  of  the  Revised 
Statutes.  (See  Turner  v.  Sawyer,  150  U.  S.,  578-586.)— Land  Office  Mining 
Regulations,  rule  53. 


568  ISSUANCE    OF    PATENTS. 

HEALEY  ET  AL.  V.  RUPP. 
1906.     Supreme  Court  of  Colorado,     yj  Colo.  25,  86  Pac.  1015. 

Action  by  Albert  J.  Rupp  against  John  Healey  and  others.  From 
a  judgment  for  plaintiff,  defendants  appeal.   Reversed  and  remanded, 

Gabbert,  C.  J.- — The  subject-matter  of  controversy  is  the  con- 
flict between  two  lode  mining  claims,  known  as  the  "Canestota"  and 
"Last  Batch."  The  owners  of  the  Last  Batch  applied  for  patent, 
which  was  adversed  by  the  owners  of  the  Canestota.  Thereafter, 
suit  was  brought  by  appellee,  as  plaintiff,  in  support  of  this  adverse 
against  the  appellants,  as  defendants.  From  a  judgment  for  plaintiff 
the  defendants  appeal.  There  have  been  several  trials,  and  the  case 
has  been  here  once  before  for  review.  28  Colo.  102,  63  Pac.  319. 
Prior  to  the  last  trial,  the  record  of  which  is  presented  by  this  appeal, 
plaintiff',  over  the  objection  of  defendants,  was  permitted  to  file  a 
supplemental  complaint,  basing  his  right  to  the  premises  in  contro- 
versy upon  a  discovery  as  of  a  date  many  years  subsequent  to  the 
time  of  filing  his  adverse  in  the  local  land  office.  Prior  to  the  filing 
of  this  supplemental  complaint  the  plaintiff  filed  an  amended  and  ad- 
ditional location  certificate,  in  which  he  claimed  the  premises  in  dis- 
pute by  virtue  of  the  discovery  mentioned  in  his  supplemental  com- 
plaint.    *     *     * 

The  proceedings  in  this  case  had  their  inception  in  the  Land  Office 
w^hen  the  defendants  filed  an  application  for  patent  on  the  Last 
Batch  lode.  The  next  step  was  the  filing  of  an  adverse  by  the  plain- 
tiff as  the  owner  of  the  Canestota,  and  the  suit  in  support  thereof 
is  but  a  continuation  of  these  proceedings  to  determine,  as  we  have 
said,  for  the  information  of  the  land  department,  which,  if  either,  of 
the  parties  is  entitled  to  a  patent  from  the  government  for  the 
premises  in  controversy.    Wolverton  v.  Nichols,  supra.     [119  U.  S. 

485-] 

The  notices  required  to  be  given  of  an  application  for  patent  are, 
in  effect,  a  summons  to  all  adverse  claimants.  Wolfley  v.  Lebanon 
Co.,  4  Colo.  \\2.  The  latter  must  assert  their  rights  by  filing  an  ad- 
verse within  the  60  days'  publication  of  notice  of  application  for 
patent.  Section  2325,  Rev.  St.  [LT.  S.  Comp.  St.  1901,  p.  1429]. 
Unless  filed  within  that  period,  it  will  be  conclusively  presumed  that 
none  exist.    Lily  M.  Co.  v.  Kellogg  (Utah)   74  Pac.  518.    So  far, 

*  Part  of  the  opinion  is  omitted. 


ADVERSE    CLAIMS    AND    PROTESTS.  5^9 

then,  as  an  adverse  claimant  is  concerned,  it  must  necessarily  fol- 
low that  his  rig-hts  to  the  premises  in  controversy  must  be  limited 
to  those  existing  at  the  time  of  filing  his  adverse.  If  he  had  no  claim 
then,  he  will  not  be  heard  to  assert  a  right  to  the  premises  in  dis- 
pute by  virtue  of  one  brought  into  existence  thereafter;  otherwise, 
he  would  be  permitted  to  assert  title  to  the  disputed  premises  by  vir- 
tue of  rights  other  than  those  upon  which  his  adverse  is  based.  The 
proof  introduced  on  behalf  of  plaintiff  failed  to  show  the  existence 
of  the  location  which  was  the  basis  of  his  adverse  against  the  appli- 
cation for  patent  on  the  Last  Batch  in  this :  That  he  offered  no  testi- 
mony to  prove  the  validity  of  that  location;  on  the  contrary,  the 
proof  was  of  another  location;  or,  if,  strictly  speaking,  not  of  an- 
other, one  which  he  did  not  prove  had  any  valid  existence  at  the  time 
the  adverse  was  filed.  The  location  which  he  did  prove,  if  good, 
had  no  validity  whatever  only  from  the  time  of  the  discovery  claimed 
in  his  supplemental  complaint,  and  had  no  existence  until  that  time — 
a  date  long  subsequent  to  that  when  his  adverse  was  filed.  i\  loca- 
tion without  a  discovery  carries  with  it  no  rights.  If  no  adverse  is 
filed  there  can  be  no  adverse  suit.  If  the  alleged  rights  upon  which 
an  adverse  is  based  are  not  established,  then  the  suit  in  support  there- 
of must  fail. 

Counsel  for  plaintiff  contend  that  as  the  jury  found  there  was  no 
discovery  on  the  Last  Batch,  the  defendants  are  not  in  a  positiou  to 
complain  of  the  verdict  and  judgment  which  awarded  the  disputed 
premises  to  the  claimant  of  the  Canestota.  If  this  were  not  a  suit  in 
support  of  an  adverse,  this  contention  would  probably  be  correct. 
If  the  judgment  is  permitted  to  stand,  then  the  plaintiff,  by  com- 
plying with  the  provisions  of  section  2326,  Rev.  St.  [U.  S.  Comp. 
St.  1901,  p.  1430],  would  be  entitled  to  a  patent  for  the  premises 
awarded  by  the  judgment,  which  it  does  not  appear  from  the  record 
before  us  he  was  entitled  to  by  virtue  of  any  adverse  filed,  but 
upon  a  location  of  such  premises  brought  into  existence  long  after 
the  expiration  of  the  period  within  which  he  was  entitled  to  ad- 
verse the  application  for  patent  on  the  Last  Batch. 

The  judgment  of  the  district  court  is  reversed,  and  the  cause  re- 
manded for  further  proceedings  in  harmony  with  the  views  ex- 
pressed in  this  opinion. 

Reversed  and  remanded. 

SEYMOUR  V.  FISHER  et  al. 

FISHER  ET  AL.  V.  SEYMOUR. 

1891.     Supreme  Court  of  Colorado.     i6  Colo.  i88,  27  Pac.  240. 

Action  in  chancery  by  Jennie  A.  Fisher  and  Nicholas  Finn,  trus- 
tee, against  G.  M.  Seymour,  to  declare  a  trust  in  favor  of  plaintiffs 


5/0 


ISSUANCE   OF    PATENTS. 


in  a  certain  mining  claim  patented  by  defendant.  Decree  granting 
the  relief  sought  in  part,  and  denying  it  in  part.  Both  parties  appeal. 
Reversed. 

Helm,  C.  J.^ — The  complaint  on  which  this  cause  was  tried  is 
framed  upon  the  theory  of  a  constructive  trust.  Relief  is  sought 
on  the  ground  that  Seymour,  who  was  defendant  below,  holds  the 
legal  title,  conveyed  to  him  by  patent,  to  a  large  part  of  the  "Tiger" 
lode,  in  trust  for  the  benefit  of  plaintiffs.  The  leading  question  to  be 
considered  is,  did  the  failure  of  plaintiffs  to  institute  adverse  pro- 
ceedings in  the  land-office  on  behalf  of  the  "American  Flag"  loca- 
tion, and  to  contest  by  suit  defendant's  claim  to  a  patent  of  the 
"Tiger"  lode,  operate  to  waive  or  forfeit  their  prior  rights  in  the 
conflicting  ground,  if  such  rights  they  had  ? 

I.  The  first  contention  of  plaintiffs'  counsel  is  that,  regardless  of 
the  statutes  providing  for  adverse  contests  and  suits,  and  notwith- 
standing the  failure  of  his  clients  to  proceed  thereunder,  the  single 
conceded  fact  of  a  valid  and  subsisting  location  of  the  "American 
Flag"  during  the  "Tiger"  patent  proceedings  is  decisive  of  the  pres- 
ent controversy.  He  asserts  that  the  territory  embraced  in  the 
"American  Flag"  location  was  so  segregated  from  the  public  domain 
as  to  be  absolutely  protected  from  patent  by  any  other  party,  though 
plaintiffs  made  no  effort  to  invoke  the  benefit  of  the  statutes  men- 
tioned. No  proposition  connected  with  the  disposal  of  mineral  land 
is  more  conclusively  established  than  that  such  land,  when  held  under 
a  valid  mining  location,  is  no  longer  subject  to  exploration  and  entry. 
The  locator  thereof  is  entitled  to  the  present  exclusive  possession  and 
use  as  against  all  the  world,  including  even  the  United  States,  which 
prior  to  patent  retains  the  legal  ownership.  Gwillim  v.  Donnellan, 
115  U.  S.  45,  5  Sup.  Ct.  Rep.  1 1 10.  A  stranger  going  thereon  for  the 
purpose  of  discovering  veins,  of  cutting-  and  removing  timber,  or  of 
otherwise  interfering  with  the  locator's  possession  and  use,  is  a  tres- 
passer. The  interest  acquired  by  compliance  with  the  mining  stat- 
utes is,  until  a  failure  to  perform  annual  labor,  or  until  abandonment 
in  some  other  way,  for  most  purposes,  as  valuable  and  effective  as  if 
the  title  had  actually  passed  by  patent.  Such  interest,  in  this  state,  is 
subject  to  taxation,  and  is  liable  to  levy  and  sale  under  execution  in 
satisfaction  of  the  owners'  debts.  It  has  been  designated  by  the  su- 
preme court  of  the  United  States  a  "grant''  of  the  present  exclusive 
right  to  possession.  Gwillim  v.  Donnellan,  supra.  The  foregoing 
legal  propositions  lend  support  to  counsel's  contention.  His  able  ar- 
gument predicated  thereon  would  possess  great  force  were  it  not  for 
the  statutes  relating  to  adverse  proceedings.  Tlie  different  laws 
providing  for  the  locating  and  patenting  of  mines  are  to  be  consid- 
ered together,  and  the  enactments  giving  the  miner  certain  exclusive 
rights  to  mineral  claims  which  he  has  located  in  compliance  there- 

*  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


ADVERSE    CLAIMS    AND    PROTESTS.  571 

with  must  be  construed  in  connection  with  the  adverse  provisions 
alluded  to.  It  is  a  matter  of  such  grave  importance  as  to  become  the 
settled  policy  of  the  general  government  that  all  controversies  re- 
lating to  conflicting  mining  claims  be,  so  far  as  possible,  adjudicated 
prior  to  patent.  The  statutes  providing  for  adverse  proceedings  in 
the  land-office  and  adverse  suits  in  the  courts  conclusively  recognize 
this  importance  and  express  this  policy.  They  do  not  deprive  the 
locator  of  his  interest,  nor  do  they  necessarily  lessen  its  complete- 
ness and  value.  They  simply  point  out  a  particular  method  by  which 
he  is  to  assert  his  priority  and  maintain  his  advantage.  The  govern- 
ment, being  the  paramount  owner  of  the  soil,  gives  the  prior  claimant 
fair  and  adequate  notice  that  he  must  assert  his  interest  in  a  certain 
prescribed  manner.  If  he  does  not  avail  himself  of  the  proceedings 
thus  provided  for  him,  the  superior  advantages  obtained  by  virtue 
of  his  priority  of  discovery  and  compliance  with  the  location  statutes 
may  be  lost.  Failing  to  invoke  the  statutory  remedy  given,  and  per- 
mitting his  adversary  to  secure  a  patent  covering  his  location  or  a 
part  thereof,  he  willbe  treated  in  law  as  having  voluntarily  waived 
his  prior  and  superior  rights.  Lee  v.  Stahl,  9  Colo.  208,  1 1  Pac.  Rep. 
'jy.  The  existence  of  a  valid  and  subsisting  location  of  the  "Amer- 
ican Flag''  at  the  time  of  the  patenting  of  the  "Tiger"  lode,  even  if 
the  priority  of  such  location  be  conceded,  did  not  ipso  facto  protect 
plaintiffs.  'The  principal  purpose  of  adverse  proceedings  is  to  de- 
termine just  such  controversies  as  arise  upon  conflicting  claims  of 
this  kind.  Plaintiffs'  prior  valid  location,  if  such  they  had,  did  not 
exonerate  them  from  the  duty  of  invoking  the  remedy  given  by  the 
adverse  statutes. 

2.  The  foregoing  views  proceed  upon  the  theory  that  aU  require- 
ments of  patent  statutes  relating  to  notices  have  been  fairly  com- 
plied with ;  and  where,  therefore,  if  the  complaining  party  has  failed 
to  avail  himself  of  the  statutory  adverse  provisions,  the  fault  is 
chargeable  to  himself,  or  at  least  cannot  be  imputed  to  the  patentee. 
But  if.  by  reason  of  the  fraudulent  conduct  of  the  patentee,  the 
would-be  contestor  is  kept  in  ignorance  of  the  pendency  of  patent 
proceedings,  and  is  thus  prevented  from  availing  himself  of  the 
statutory  remedy,  a  court  of  equity  may,  in  our  judgment,  inter- 
fere. *  *  *  The  questions  tried  are :  Did  the  complaining  party 
have  a  valid  and  subsisting  location  prior,  and  therefore  superior,  to 
that  with  which  it  conflicted,  and  upon  which  the  patent  is  based? 
and  did  the  fraud  of  the  patentee  keep  him  in  ignorance  of  the  patent 
proceedings  ?  If  these  questions  be  affirmatively  answered,  plaintiff 
may  recover  the  ground  in  conflict.  His  suit  in  equity  presupposes 
the'  proper  passage  of  the  title  from  its  owner  to  the  patentee,  in- 
cluding'the  legality  of  the  conveyance.  He  does  not  assert  his  right 
to  the  patent  from  the  government;  he  accepts  the  instrument  al- 
ready given  as  in  all  respects  sufficient  to  convey  the  legal  title,  but 
says  :  "Owing  to  my  superior  interest  in  the  premises,  which  entitles 


[^72  ISSUANCE    OF    PATENTS. 

me  to  the  exclusive  possession  and  use,  even  as  against  the  United 
States,  and  owing  to  the  fraud  perpetrated  upon  me  by  the  patentee, 
I  occupy  the  status  of  a  beneficial  owner.  My  equitable  rights  are 
under  the  law  superior  to  the  naked  legal  rights  of  the  patentee.  If 
the  government,  the  original  owner  of  the  paramount  title,  is  dis- 
satisfied with  the  proceedings  whereby  this  title  was  divested,  let  the 
proper  steps  be  taken  to  secure  the  annulment  of  the  instrument; 
but,  so  long  as  the  government  does  not  complain,  I  demand  in 
equity  a  determination  favorable  to  me  of  the  private  controversy 
between  the  patentee  and  myself."  Equity  must  recognize  his  right 
and  enforce  his  demand,  or  else,  admitting  its  justice,  must  decline 
to  notice  the  fraud  and  refuse  relief. 

The  complaint  in  the  case  at  bar  substantially  avers  that  plain- 
tiffs were  fraudulently  kept  in  ignorance  of  the  pendency  of  the  pat- 
ent proceedings  until  after  the  period  for  interposing  objection  in 
the  land-office  had  expired.  The  specific  grounds  upon  which  the 
alleged  fraud  is  rested  may  be  stated  as  follows :  First,  that  in  the 
amended  location  certificate  the  surface  boundaries  of  the  "Little 
Tiger"  were  changed  without  the  knowledge  of  plaintiffs,  so  as  to 
include  a  much  larger  proportion  of  the  "American  Flag ;"  second, 
that  in  the  patent  notices  posted  and  published  no  mention  was  made 
of  the  adjoining  claimants ;  third,  that  defendant  Seymour  was  then 
a  co-owner  with  plaintiff's  in  the  "General  Shields,"  an  adjoining 
property,  and  was  acting  during  the  absence  of  plaintiffs  as  their 
confidential  adviser  in  connection  therewith,  and  professing  to  pro- 
tect their  interests  therein  through  feelings  of  kindness  and  friend- 
ship ;  and,  fourth,  that  in  the  amended  location  certificate,  and  in  the 
patent  notices,  the  name  of  the  original  claim  was  changed  from  the 
"Little  Tiger"  to  the  "Tiger,"  the  prefix  "Little"  being  omitted. 
Upon  these  averments  we  make  the  following  observations :  First. 
The  law  permits  a  change  of  boundaries  when  amended  location  cer- 
tificates are  filed ;  and,  if  the  superior  rights  of  others  are  thus  inter- 
fered with,  such  interference  should  be  pointed  out  and  relied  upon 
in  opposition  to  the  trespasser's  claim  to  a  patent,  if  not  before.  This 
injury  is  as  effectually  waived  by  a  failure  to  adverse  as  are  prior 
conflicting  rights  where  no  change  of  surface  boundaries  has  taken 
place.  Second.  The  provision  requiring  patent  notices  to  mention 
the  names  of  adjoining  claimants  appears  onlv  in  the  land-office 
rules.  It  does  not  specifically  exist  in  the  statutes ;  but,  viewing  the 
omission  as  an  important  defect,  we  need  only  advert  to  the  fac^  that 
the  abstract  before  us  fails  to  disclose  any  proof  received  or  offered, 
tending  to  show  that  the  notices  in  question  were  imperfect  in  this 
particular.  Third.  The  fact  that  defendant  was  a  co-owner  with 
plaintiffs  in  other  property,  and  was  acting  as  their  confidential 
adviser  in  connection  therewith,  furnishes  no  legal  ground  cogniz- 
able either  in  a  court  of  law  or  equity  for  the  complaint  that  he 
did  not  protect  their  interests  in  the  "American  Flag."     Besides,  it 


ADVERSE    CLAIMS    AND    PROTESTS.  573 

clearly  appears  from  the  evidence  that  plaintiffs  were  not  both  ab- 
sent, and  that  defendant  was  not  acting  during  any  of  the  period 
mentioned  as  the  confidential  adviser  of  both.  Plaintiff  Finn 
was  in  Leadville  most,  if  not  all,  of  the  time,  and  he  is  not 
shown  to  have  had  any  business  relationship  whatever  with  defend- 
ant. Fourth.  The  omission  of  the  prefix  "Little"  in  the  name  of  the 
lode  patented,  we  do  not  think,  in  and  of  itself,  is  sufficient  excuse 
for  the  alleged  ignorance  of  plaintiffs.  It  appears  that  the  "Little 
Tiger"  was  known  and  always  spoken  of  as  the  "Tiger."  The  habit 
of  omitting  the  adjective  prefix  to  the  names  of  lodes  seems  to  have 
been  general  in  that  mining  district.  The  "American  Flag,"  for  in- 
stance, was  known  as  the  "Flag,"  and  the  "General  Shields"  is  con- 
tinually referred  to  by  witnesses  testifying  at  the  trial  on  both  sides 
as  the  "Shields."  It  does  not  appear  that  the  description  of  the  prop- 
erty was  in  any  other  way  defective.  The  mining  district,  the  local- 
ity, the  reference  to  natural  objects  or  permanent  monuments,  we  are 
bound  to  assume  were  unobjectionable.  One  of  the  corners  is  de- 
scribed as  "Corner  No.  1-831,"  of  the  "General  Shields."  Neither  the 
sufficiency  of  the  posting  of  the  plats  and  notices  on  the  claim  and  in 
the  land-offixe  nor  the  adequacy  of  the  newspaper  advertisements  is 
successfully  challenged.  We  cannot  say,  nor  did  the  jury  or  court 
find,  that  plaintiffs,  including  Finn,  who  was  present  in  Leadville, 
were  deceived  by  the  change  of  name,  and  thus  prevented  from  insti- 
tuting a  proper  contest  by  adverse  proceedings. 

3.  But  the  questions  submitted  to  the  jury,  together  with  the  find- 
ings of  the  trial  court,  show  that  the  decree  against  Seymour  and  in 
favor  of  plaintiffs  is  predicated  largely  upon  a  fiduciary  relationship. 
The  theory  in  this  regard  is  that  Mrs.  Fisher  employed  Seymour  to 
act  as  her  agent  and  confidential  adviser  as  to  the  value  and  sale  of 
the  "American  Flag;"  that  having  accepted  such  agency,  and  while 
conferring  and  corresponding  with  her  in  relation  thereto,  he  took 
advantage  of  her  absence,  and  through  her  trust  and  confidence, 
coupled  with  his  fraudulent  conduct,  kept  her  in  ignorance  of  his  in- 
tention and  acts  until  a  patent  issued  to  himself  covering  a  large  part 
of  the  trust-estate.  The  existence  of  this  fiduciary  relationship  is 
most  strenuously  denied  by  Seymour,  and  the  evidence  upon  the  sub- 
ject is  not  as  satisfactory  as  could  be  desired ;  but  we  do  not  propose 
to  determine  its  sufficiency  to  support  the  findings  and  judgment, 
embarrassed  as  the  investigation  would  be  by  the  fact  that  our  facili- 
ties for  correctly  weighing  the  credibility  of  witnesses  are  greatly  in- 
ferior to  those  possessed  by  the  trial  court,  for  the  most  careful  scru- 
tiny of  the  complaint  upon  which  the  cause  was  tried  wholly  fails  to 
reveal  any  averment  setting  up,  or  tending  to  set  up,  the  alleged 
agency.  It  would  be  an  unwarranted  assumption  for  us  to  hold  that 
the  allegation  concerning  defendant's  co-ownership  and  agency  in  the 
"Shields"  pleads,  or  was  intended  to  plead,  a  similar  fiduciary  con- 


574 


ISSUANCE   OF    PATENTS. 


nection  with  the  "American  Flag."     The  admission  of  the  evidence 
bearing  upon  Seymour's  agency  as  to  the  "American  Flag,"  over  his 
repeated  objections,  was,  therefore,  error.    =•'■    *    * 
Reversed. 


TURNER  ET  AL.  V.  SAWYER. 

1893.     Supreme  Court  of  the  United  States.     150  U.  S.  578,  37 
L.  ed.  1 189,  14  Sup.  Ct.  192. 

Appeal  from  the  circuit  court  of  the  United  States  for  the  district 
of  Colorado.     Affirmed. 

Statement  by  J\Ir.  Justice  Brown  : 

This  was  a  bill  in  equity  filed  by  the  appellee,  Sawyer,  against  Rob- 
ert Turner,  George  E.  [McClelland,  and  J.  S.  Allison,  the  purpose  of 
which  was  to  have  the  defendant  Turner  declared  a  trustee  for  the 
use  of  the  plaintiff  of  an  undivided  five-eighths  interest  in  what  was 
known  as  the  "Wallace  Lode,"  which  had  been  previously  patented 
by  the  government  to  Turner,  and  to  compel  a  conveyance  of  the 
same  to  the  plaintiff. 

The  case  was  submitted  upon  an  agreed  statement  of  facts,  which 
w^as  substantially  as  follows :  The  Wallace  lode,  so  called,  was  dis- 
covered and  located  by  John  Clark  on  September  20,  1878.  On 
August  12,  1882,  Clark  conveyed  an  undivided  three-fourths  of  this 
lode  to  Amos  Sawyer  and  Alarcus  Finch.  On  May  i,  1882,  Clark 
conveyed  the  other  one-fourth  interest  to  William  Hunter,  but  the 
deed  was  never  recorded,  the  parties  supposing  it  to  be  lost ;  and  on 
October  25th  he  made  another  deed  to  Hunter,  which  contained  a  re- 
cital that  it  was  made  to  supply  the  place  of  the  other.  On  October 
26,  1882,  Amos  Sawyer  and  Marcus  Finch  reconveyed  the  undivided 
one-half  of  the  lode  to  John  Clark.  On  January  8,  1883,  Marcus 
Finch  conveyed  an  undivided  one-eighth  to  Alice  E.  Finch.  On 
Alarch  16,  1883,  Clark  and  Hunter  conveyed  three-fourths  of  the 
Wallace  lode  to  Amos  Sawyer  and  John  S.  Sanderson. 

At  this  time,  then,  the  lode  was  owned  as  follows :  Amos  Sawyer, 
one-half,  or  four-eighths ;  John  S.  Sanderson,  three-eighths ;  Alice 
E.  Finch,  one-eighth. 

It  so  remained  from  March  16,  1883,  to  January  12,  1885,  when 
Amos  Sawyer  assumed  to  convey  his  undivided  one-half  interest  to 
Alfred  A.  K.  Sawyer,  who  also  became  possessed  of  the  one-eighth 
interest  of  Alice  E.  Finch,  November  3,  1886. 

The  controversy  arose  over  a  lien  filed  August  14,  1883,  by  one 
John  F.  Teal  for  annual  labor  done  upon  the  lode  at  the  request  of 
John  S.  Sanderson  and  Amos  Sawyer.  Teal  claimed  a  lien  for  the 
sum  of  $148.10,  and  filed  notice  thereof  in  the  recorder's  office  of 


ADVERSE    CLAIMS    AND    PROTESTS.  5/5 

Clear  Creek  couPxty.  One  Charles  Christianson  also  filed  a  similar 
notice,  claiming  a  lien  for  $227.95.  On  January  12,  1884,  Teal  insti- 
tuted a  suit  in  the  county  court  of  Clear  Creek  county  to  enforce  his 
lien,  and  made  John  S.  Sanderson,  Marcus  Finch,  P.  F.  Smith,  and 
Sawyer  defendants,  as  the  owners  thereof.  There  was  no  serv- 
ice upon  Sawyer,  and  he  was  not  in  court.  On  June  2,  1884,  Teal 
proceeded  to  sell  the  interest  of  John  S.  Sanderson,  Marcus  Finch, 
and  P.  F.  Smith  to  pay  the  amount  of  his  decree,  at  which  sale  A.  K. 
White  became  the  purchaser,  took  his  certificate  of  purchase  from  the 
sheriff,  and  sold  and  assigned  it  to  Turner,  who  obtained  a  sheriff's 
deed  on  March  3,  1885.  This  deed  purported  to  convey  the  whole 
Wallace  lode.  Christianson  instituted  a  suit  against  the  same  de- 
fendants as  in  the  Teal  suit,  which  was  pending  at  the  time,  to  en- 
force his  lien  against  the  same. 

On  April  24,  1885,  Turner,  who  had  done  the  annual  labor  on  the 
claim  for  the  year  1884,  before  he  obtained  a  sheriff's  deed,  published 
a  forfeiture  notice  against  the  appellee,  Sawyer,  under  Rev.  St.  § 
2324,  but  no  forfeiture  notice  was  published  against  Alice  E.  Finch, 
who  still  owned  an  undivided  one-eighth  of  the  lode,  nor  against 
Amos  Sawyer,  who  owned  one-half  of  the  lode  during  the  year  1884, 
and  until  January  12,  1885,  as  above  stated.  Appellant  Turner  de- 
clined an  offer  made  January  18,  1885,  to  pay  five-eighths  of  the  $100 
for  the  annual  labor  of  1884  on  behalf  of  Alice  E.  Finch  and  Amos 
Sawyer,  on  the  ground  that  the  records  showed  only  Sanderson  and 
Sawyer  as  having  any  remaining  interest.  On  October  27,  1885, 
Turner  filed  in  the  of^ce  of  the  clerk  and  recorder  of  Clear  Creek 
county  an  affidavit  that  Alfred  A.  K.  Sawyer,  the  appellee,  had 
wholly  failed  to  comply  with  the  demands  contained  in  the  forfeiture 
notice.  Subsequently,  and  about  November  ist,  Turner  instituted 
proceedings  in  the  United  States  land  office  at  Central  City,  Colo.,  for 
the  purpose  of  procuring  a  patent  for  the  lode  in  his  own  name,  and 
on  April  13,  1886,  a  receiver's  receipt  was  issued  to  him  by  the  re- 
ceiver of  the  land  office,  acknowledging  payment  in  full  for  the  entire 
lode ;  and  on  April  20th  he  conveyed  an  undivided  one-fourth  inter- 
est to  George  E.  McClelland,  by  deed  recorded  December  6,  1886, 
and  another  undivided  one-quarter  to  J.  S.  Allison,  by  deed  recorded 
May  19,  1886. 

On  March  17,  1887,  the  appellee,  Sawyer,  filed  this  bill,  charging 
the  patent  to  have  been  procured  by  the  appellant  Turner  by  false 
and  fraudulent  representations  as  to  ownership,  and  praying  that  the 
title  to  an  undivided  five-eighths  of  the  lode  be  deemed  to  belong  to 
the  appellee,  and  that  Turner  convey  the  same  to  him. 

Upon  the  hearing  in  the  court  below  it  was  found  that  at  the  time 
Turner  applied  for  the  patent  and  received  the  receipt  therefor,  he 
was  not  the  legal  owner  of  an  undivided  five-eighths  of  such  lode, 


^y^  ISSUANCE    OF    PATENTS. 

and  it  was  decreed  that  he  convey  the  same  to  the  appellee,  Sawyer, 
and  the  other  defendants  were  enjoined  from  interfering. 

From  this  decree  an  appeal  was  taken  to  this  court  by  Turner  and 
McClelland. 

Mr.  Justice  Brown,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 

The  real  question  in  this  case  is  whether  the  title  to  the  half  inter- 
est which  Amos  Sawyer  assumed  to  convey  to  the  appellee,  Alfred 
A.  K.  Sawyer,  January  12,  1885,  was  obtained  by  Turner  through 
the  proceedings  taken  by  Teal  in  the  enforcement  of  his  lien  for  labor 
done  upon  this  lode,  or  by  the  forfeiture  notice  published  for  the  an- 
nual labor  done  in  1884. 

1.  It  is  evident  that  nothing  can  be  claimed  by  virtue  of  the  suit 
begun  by  Teal,  January  12,  1884,  against  John  S.  Sanderson,  Marcus 

Finch,  P.  F.  Smith,  and Sawyer,  as  the  owners  of  such  lode,  to 

enforce  his  lien,  since  there  was  no  service  upon  Sawyer,  no  appear- 
ance entered  for  him,  and  he  was  never  in  court.  Judgment  was  ren- 
dered in  this  suit  against  Sanderson,  Smith,  and  Finch,  the  last  two 
of  whom  appear  to  have  had  no  interest  in  the  property.  Whether 
such  proceedings  w^ere  effective  as  against  Sanderson,  it  is  unneces- 
sary to  inquire.  Not  only  was  Sawyer  not  served  in  the  suit,  but  in 
the  execution  sale  no  pretense  was  made  of  the  sale  of  any  interests 
except  those  of  Sanderson,  Smith,  and  Finch,  which  were  struck  ofif 
to  A.  K.  White,  and  were  subsequently  sold  by  him  to  Turner,  to 
whom  the  sheriff's  deed  was  given  March  3,  1885. 

2.  It  remains,  then,  to  consider  whether  Turner  acquired  such 
interest  by  the  publication  of  his  forfeiture  notice  against  Sawyer 
for  the  annual  labor  of  1884.    This  notice  was  as  follows: 

"To  A.  A.  K.  Sawyer,  residence  unknown :  You  are  hereby  noti- 
fied that  I  have  performed  the  annual  labor  required  by  law  for  the 
year  1884  upon  the  Wallace  lode,  situated  in  Cascade  mining  dis- 
trict. Clear  Creek  county,  Colorado,  and  that  unless  within  the  time 
prescribed  by  law  you  pay  your  proportionate  amount  of  said  ex- 
penditure your  interest  in  said  lode  will  be  forfeited  to  me  under  the 
provisions  of  section  2324  of  the  Revised  Statutes  of  the  United 
States.    Robert  Turner." 

This  notice  was  published  pursuant  to  Rev.  St.  §  2324,  which  en- 
acts that  "upon  the  failure  of  any  one  of  several  co-owners  to  con- 
tribute his  proportion  of  the  expenditures  required  hereby,  the  co- 
owners  who  have  performed  the  labor  or  made  the  improvements 
may,  at  the  expiration  of  the  year,  give  such  delinquent  co-owner 
personal  notice  in  writing  or  notice  by  publication  in  the  newspaper 
published  nearest  the  claim,  for  at  least  once  a  week  for  ninety  days, 
and  if  at  the  expiration  of  ninety  days  after  such  notice  in  writing 
or  by  publication  such  delinquent  should  fail  or  refuse  to  contribute 
his  proportion  of  the  expenditure  required  by  this  section,  his  in- 


ADVERSE    CLAIMS    AND    PROTESTS.  577 

terest  in  the  claim  shall  become  the  property  of  his  co-owners,  who 
have  made  the  required  expenditures." 

It  will  be  observed  that  the  right  to  give  this  notice  of  a  claim  for 
contribution  is  limited  to  a  co-owner  who  has  performed  the  labor. 
Turner  was  not  a  co-owner  wath  Sawyer  at  any  time  during  1884, 
as  Alfred  A.  K.  Sawyer  did  not  receive  his  deed  from  Ainos  Sawyer 
until  January  12,  1885,  and  Turner  did  not  receive  his  deed  from  the 
sheriff  until  ]\larch  3,  1885.  He  did,  however,  hold  an  inchoate 
title  by  virtue  of  White's  purchase  at  the  execution  sale  of  June  2, 
1884,  and  the  subsequent  assignment,  August  25,  1884,  of  the 
sheriff's  certificate  to  him.  He  appears  also  to  have  obtained  the 
assignment  of  certain  other  judgments  which  had  been  recovered 
by  William  Hunter  against  Sanderson  and  Smith.  These  judgments 
were  assigned  to  him  August  27,  1884,  sales  made  under  them  Janu- 
ary 12,  1885,  and  certificates  of  sale  issued  to  Turner,  who  thus  be- 
came the  purchaser  under  these  judgments.  Neither  of  these,  how- 
ever, made  him  a  co-owner  during  the  year  1884,  within  the  meaning 
of  the  statute,  which,  providing  as  it  does  for  the  forfeiture  of  the 
rights  of  a  co-owner,  should  be  strictly  construed.  Indeed,  by  the 
laws  of  Colorado  title  to  land  sold  under  execution  remains  in  the 
judgment  debtor  until  the  deed  is  executed.  Hayes  v.  Mining  Co., 
2  Colo.  273,  2^/ ;  Laffey  v.  Chapman,  9  Colo.  304,  12  Pac.  152; 
Manning  v.  Strehlow,  11  Colo.  451,  457,  18  Pac.  625. 

This  accords  with  cases  from  other  states,  which  hold  that  the 
estate  of  the  defendant  in  execution  is  not  divested  by  a  seizure  and 
sale  of  his  lands,  but  only  by  a  payment  of  the  purchase  money  and 
delivery  of  a  deed.  The  sheriff's  certificate  is  necessary  as  written 
evidence  to  satisfy  the  statute  of  frauds  and  to  identify  the  holder 
as  the  person  ultimately  entitled  to  the  deed,  but  it  does  not  pass  the 
title  to  the  land,  nor  constitute  the  purchaser  the  owner  thereof. 
Catlin  V.  Jackson,  8  Johns.  420;  Gorham  v.  Wing,  10  Alich.  486,  493 ; 
Green  v.  Burke,  23  Wend.  490,  498;  Hawley  v.  Cramer,  4  Cow. 

717-  725- 

It  seems,  however,  that  Turner,  soon  after  the  making  and  filing 
by  him  of  an  affidavit  of  nonpayment  by  Sawyer  of  his  alleged  pro- 
portion of  his  claim  for  labor,  instituted  proceedings  in  the  land 
office  at  Central  City  for  the  purpose  of  procuring  a  patent  for  this 
lode,  to  be  issued  to  himself  alone,  and  prosecuted  such  proceedings 
so  far  as  to  obtain,  on  April  13,  1886,  a  "receiver's  receipt,"  so  called, 
issued  from  the  land  office  and  delivered  to  him.  This  receipt  was 
recorded  in  the  recorder's  office  of  Clear  Creek  county,  Colo.,  and 
on  April  20th  Turner  conveyed  to  appellants  Allison  and  McClelland 
each  an  undivided  one-quarter  interest  in  the  lode.  Whether  he  pro- 
cured such  receiver's  receipt  by  fraudulent  and  false  representations, 
as  charged  in  the  bill,  it  is  unnecessary  to  determine.  It  is  clear, 
to  put  upon  it  the  construction  most  favorable  to  him,  that  he  acted 
under  a  misapprehension  of  his  legal  rights.     There  is  nothing  in 

37 — Mining  Law 


578  ISSUANCE   OF    PATENTS. 

the  record  showing  that  he  ever  became  possessed  of  Sawyer's  in- 
terest in  the  lode.  Assuming  that,  under  the  proceedings  in  the 
Teal  suit,  he  had  acquired  the  legal  title  to  Sanderson's  interest,  he 
became  merely  a  tenant  in  common  with  Sawyer,  and  his  subsequent 
acquisition  of  the  legal  title  from  the  land  office  inured  to  the  bene- 
fit of  his  cotenants  as  well  as  himself.  It  is  well  settled  that  co- 
tenants  stand  in  a  certain  relation  to  each  other  of  mutual  trust  and 
confidence ;  that  neither  will  be  permitted  to  act  in  hostility  to  the 
other  in  reference  to  the  joint  estate ;  and  that  a  distinct  title  acquired 
by  one  will  inure  to  the  benefit  of  all.  A  relaxation  of  this  rule  has 
been  sometimes  admitted  in  certain  cases  of  tenants  in  common  who 
claim  under  different  conveyances  and  through  different  grantors. 
However  that  may  be,  such  cases  have  no  application  to  the  one 
under  consideration,  wherein  a  tenant  in  common  proceeds  sur- 
reptitiously, in  disregard  of  the  rights  of  his  cotenants,  to  acquire 
a  title  to  which  he  must  have  known,  if  he  had  made  a  careful  ex- 
amination of  the  facts,  he  had  no  shadow  of  right.  We  think  the 
general  rule,  as  stated  in  Bissell  v.  Foss,  114  U.  S.  252,  259,  5  Sup. 
Ct.  851,  should  apply;  that  "such  a  purchase  [of  an  outstanding  title 
or  incumbrance  upon  the  joint  estate  for  the  benefit  of  one  tenant  in 
common]  inures  to  the  benefit  of  all,  because  there  is  an  obligation 
between  them,  arising  from  their  joint  claim  and  community  of  in- 
terest;  that  one  of  them  shall  not  affect  the  claim  to  the  prejudice 
of  the  others."  Rothwell  v.  Dewees,  2  Black,  613 ;  Van  Home  v. 
Fonda,  5  Johns.  Ch.  388 ;  Lloyd  v.  Lynch,  28  Pa.  St.  419 ;  Downer 
V.  Smith,  38  Vt.  464. 

A  title  thus  acquired  the  patentee  holds  in  trust  for  the  true  owner, 
and  this  court  has  repeatedly  held  that  a  bill  in  equity  will  lie  to 
enforce  such  trust.  Johnson  v.  Towsley,  13  Wall.  72;  ]Moore  v. 
Robbins,  96  L^  S.  530 ;  Marqueze  v.  Frisbie,  loi  U.  S.  473 ;  Rector 
v.  Gibbon,  iii  U.  S.  276,  291,  4  Sup.  Ct.  605;  Cattle  Co.  v.  Becker, 
147  U.  S.  47,  13  Sup.  Ct.  217. 

It  is  contended,  however,  that  Sawyer  is  precluded  from  maintain- 
ing this  bill  by  the  fact  that  he  filed  no  adverse  claim  to  the  lode  in 
cjuestion  under  section  2325  Rev.  St.  This  section  declares  that,  "if 
no  adverse  claim  shall  have  been  filed  with  the  register  and  receiver 
of  the  proper  land  office  at  the  expiration  of  the  sixty  days  of  publi- 
cation" of  notice  of  application  for  patent,  "it  shall  be  assumed  that 
the  applicant  is  entitled  to  a  patent,  upon  the  payment  to  the  proper 
officer  of  five  dollars  per  acre,  and  that  no  adverse  claim  exists ;  and 
thereafter  no  objection  from  third  parties  to  the  issuance  of  a  patent 
shall  be  heard,  except  it  be  shown  that  the  applicant  has  failed  to 
comply  with  the  terms  of  this  chapter."  By  section  2326,  "where 
an  adverse  claim  is  filed  during  the  period  of  publication,  it  shall  be 
upon  oath  of  the  person  or  persons  making  the  same,  and  shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim,"  etc.  In 
this  case  there  was  no  conflict  between  different  locators  of  the  same 


ADVERSE    CLAIMS    AND    PROTESTS.  579 

land,  and  no  contest  with  regard  to  boundaries  or  extent  'of  claim, 
such  as  seems  to  be  contemplated  in  these  provisions.  Turner  did 
not  claim  a  prior  location  of  the  same  lode,  and  made  no  objection 
to  the  boundaries  or  extent  of  Sawyer's  claim,  but  asserted  that  he 
had  acquired  Sawyer's  title  by  legal  proceedings.  The  property  of 
such  claim  was  not  a  question  which  seems  to  have  been  contemplated 
in  requiring  the  "adversing"  of  hostile  claims.  In  this  particular 
the  case  of  Garland  v.  Wynn,  20  How.  6,  is  in  point.  In  this  case 
it  was  held  that  where  the  register  and  receiver  of  public  lands  had 
been  imposed  upon  by  ex  parte  affidavits,  and  a  patent  had  been 
obtained  by  one  having  no  interest  secured  to  him  in  virtue  of  the 
pre-emption  laws,  to  the  destruction  of  another's  right  who  had  a 
preference  of  entry,  which  he  preferred  and  exerted  in  due  form, 
but  which  right  was  defeated  by  false  swearing  and  fraudulent  con- 
trivance brought  about  by  him  to  whom  the  patent  was  awarded, 
that  the  jurisdiction  of  the  courts  of  justice  was  not  ousted  by  the 
regulations  of  the  commissioner  of  the  general  land  office.  "The 
general  rule  is,"  says  Mr.  Justice  Catron,  "that  where  several  par- 
ties set  up  conflicting  claims  to  property,  with  which  a  special  trib- 
unal may  deal,  as  between  one  party  and  the  government,  regardless 
of  the  rights  of  others,  the  latter  may  come  into  the  ordinary  courts 
of  justice  and  litigate  the  conflicting  claim."  Such  was  the  case  of 
Comegys  v.  Vasse,  i  Pet.  212,  and  the  case  before  us  belongs  to  the 
same  class  of  ex  parte  proceedings ;  nor  do  the  regulations  of  the 
commissioner  of  the  general  land  office,  whereby  a  party  may  be  held 
to  prove  his  better  claim  to  enter,  oust  the  jurisdiction  of  the  courts 
of  justice.  We  announce  this  to  be  the  settled  doctrine  of  this  court. 
See,  also.  Cattle  Co.  v.  Becker,  147  U.  S.  47,  57,  13  Sup.  Ct.  217, 
and  cases  cited. 

The  judgment  of  the  court  below  was  right,  and  it  is  therefore 
affirmed.^ 


CREEDE  &  CRIPPLE  CREEK  MINING  &  MILLING  COM- 
PANY, Petitioner,  v.  UINTA  TUNNEL  MINING 
&  TRANSPORTATION  COMPANY. 

(See  ante,  p.  295,  for  a  report  of  the  case.) 


POORE  ET  AL.  V.  KAUFMAN. 

191 1.     Supreme  Court  of  Montana.     119  Pac.  785. 

Action  by  J.  A.  Poore  and  others  against  Louis  Kaufman.  From 
a  judgment  for  plaintififs,  defendant  appeals.     Affirmed. 

Hollow  AY,  J. — On  March  i,  1899,  the  defendant,  Kaufman,  made 
application  to  the  local  land  office  for  a  patent  to  his  Little  Spring 

*  See  Land  Office  rule  53  quoted  at  the  beginning  of  this  chapter. 


rgQ  ISSUANCE   OF    PATENTS. 

quartz  lode  mining  claim.  During  the  period  of  publication,  an  ad- 
verse claim,  bv  Thornton  and  others,  was  presented  and  allowed, 
and  suit  commenced  within  30  days  (in  May,  1899).  Proceedings 
in  the  court  were  carried  on  for  several  years.  On  January  7,  1910, 
this  court  rendered  its  final  decision  (Thornton  v.  Kaufman,  40 
Mont.  282,  ic6  Pac.  361,  135  Am.  St.  Rep.  618)  ;  on  February  4th 
the  remittitur  issued,  but  was  not  filed  in  the  district  court  until 
December  3,  1910.  On  January  24,  191 1,  this  action  was  com- 
menced. In  the  complaint  the  plaintiffs  set  forth  the  foregoing  his- 
tory, and  allege  that  defendant.  Kaufman,  failed  to  do  any  annual 
representation  work  during  1903,  1904,  or  1909;  that,  on  January 
8,  1910,  they  relocated  the  ground  as  the  Fair  Trial  quartz  lode  min- 
ing claim ;  and  that  they  have  ever  since  been  in  the  peaceful  posses- 
sion of  the  same.  They  allege  that  the  patent  proceedings  are  still 
pending  in  the  local  land  office ;  that  Kaufman  has  not  presented  to 
the  local  land  office  a  copy  of  the  judgment  in  Thornton  v.  Kauf- 
man, or  paid  to  the  land  office  the  purchase  price  of  the  ground,  or 
received  a  receiver's  receipt,  but  that  he  is  about  to  proceed  to  secure 
a  patent  to  the  ground  in  controversy.  The  prayer  is  that  the  plain- 
tiffs' title  be  quieted  as  against  Kaufman,  and  for  an  injunction,  re- 
straining him  from  prosecuting  the  patent  proceedings.  A  tem- 
porary injunction  was  issued.  Thereafter,  on  February  16,  191 1, 
defendant  appeared  and  presented  a  demurrer  to  the  complaint  and 
a  motion  to  dissolve  the  temporary  injunction.  On  February  25th 
the  demurrer  and  motion  were  overruled,  and  this  appeal  is  prose- 
cuted from  the  order  of  the  court,  refusing  to  dissolve  the  injunc- 
tion. 

But  a  single  question  is  presented  for  our  determination,  viz. : 
Has  the  district  court  of  Silver  Bow  county  jurisdiction  to  hear  and 
determine  the  questions  raised  by  the  complaint?  Appellant  insists 
that  these  questions  are  exclusively  for  the  determination  of  the 
Land  Department,  and  this  assertion  is  predicated  upon  the  failure 
of  these  plaintiffs  to  adverse  Kaufman's  application  for  patent. 
However,  a  reference  to  the  facts  stated  above  discloses  that  plain- 
tiffs' right  to  or  interest  in  the  property  was  not  initiated  until  more 
than  10  years  after  the  period  of  publication  of  Kaufman's  notice 
of  application  for  patent  expired.  During  the  period  of  publication, 
therefore,  these  plaintiffs  did  not  have  any  right  upon  which  to  base 
an  adverse  claim.  They  could  not  anticipate  that  such  right  would 
thereafter  arise,  and  even  if  they  could  such  contemplated  right 
would  not  give  them  standing  as  adverse  claimants.  In  Enterprise 
Mining  Co.  v.  Rico-Aspen  Min.  Co.,  167  U.  S.  108,  17  Sup.  Ct. 
762,  42  L.  Ed.  96,  the  court  said:  "The  obvious  contemplation  of 
the  law  in  respect  to  these  adverse  proceedings  is  that  there  shall 
be  a  present,  tangible  and  certain  right,  and  not  a  mere  possibility." 
If.  then,  it  is  only  a  present,  certain  and  tangible  right  which  jus- 
tifies an  adverse  claim,  under  section  2325,  United  States  Revised 


ADVERSE    CLAIMS    AND    PROTESTS.  58 1 

Statutes  (U.  S.  Comp.  St.  190 1,  p.  1429),  clearly  these  plaintiffs 
could  not  bring  themselves  within  the  provisions  of  the  law  ap- 
plicable to  adverse  claimants. 

[i]  That  neither  the  pendency  of  the  proceedings  for  patent  be- 
fore the  land  office,  nor  the  adverse  suit  by  Thornton  and  others, 
relieved  Kaufman  from  the  necessity  of  doing  the  annual  repre- 
sentation work  upon  his  Little  Spring  claim  is  settled  beyond  con- 
troversy. The  duty  to  perform  such  work  continued  until  payment 
of  the  purchase  price  is  inade  to  the  government  (2  Lindley  on 
Mines  [2d  Ed.]  §  632;  i  Snyder  on  Mines,  §  493;  South  End  Min. 
Co.  V.  Tinney,  22  Nev.  19,  35  Pac.  89 ;  section  2324,  U.  S.  Rev. 
Stat.  [U.  S.  Comp.  St.  1901,  p.  1426])  ;  and  failure  to  perform  such 
work  subjects  the  claim  to  relocation.  Black  v.  Elkhorn  Min.  Co., 
163  U.  S.  445,  16  Sup.  Ct.  iioi,  41  L.  Ed.  221. 

It  is  alleged  in  the  complaint,  and  for  the  purposes  of  this  appeal 
will  be  treated  as  true,  that  Kaufman  did  not  do  any  representation 
work  at  all  during  1909.  Under  such  circumstances,  the  ground 
was  open  to  relocation,  and  plaintiffs,  having  relocated  it  by  com- 
plying with  the  law,  acquired  the  right  to  the  peaceable  possession 
of  the  ground,  and  to  patent,  if  they  follow  up  their  claim  by  com- 
plying with  the  law  hereafter. 

[2]  Appellant  bases  his  claim  that  this  action  will  not  lie  upon 
the  following  provisions  of  section  2325,  supra:  'Tf  no  adverse 
claim  shall  have  been  filed  with  the  register  and  receiver  of  the  prop- 
er land  office  at  the  expiration  of  the  sixty  days  of  publication,  it 
shall  be  assumed  that  the  applicant  is  entitled  to  a  patent,  upon  the 
payment  to  the  proper  officer  of  five  dollars  per  acre,  and  that  no 
adverse  claim  exists."  Clearly  this  section  refers  to  a  present, 
tangible  claim,  existing  at  some  time  during  the  60-day  period  of 
publication.  In  the  case  of  P.  Wolenberg,  29  Land  Dec.  Dept.  Int. 
302,  Secretary  Hitchcock  said :  "The  assumption,  declared  in  sec- 
tion 2325  of  the  Revised  Statutes,  that  no  adverse  claim  exists  in 
those  instances  where  no  adverse  claim  is  filed  in  the  local  land 
office  during  the  period  of  publication  relates  to  the  time  of  the  ex- 
piration of  the  period  of  publication  and  to  adverse  claims  which 
might  have  been  made  known  at  the  local  office  before  that  time.  It 
has  nothing  to  do  with  adverse  claims  which  are  initiated  subsequent 
to  that  time,  and  which  could  not,  therefore,  have  been  made  known 
at  the  local  office  during  the  period  of  publication."  As  to  such 
existing  claim,  an  adverse  must  be  filed  in  the  land  office,  or  the 
claim  is  waived.  Hamilton  v.  Southern  Nevada  Gold,  etc.,  Min. 
Co.  (C.  C.)  33  Fed.  562;  Lily  Mining  Co.  v.  Kellogg,  27  Utah,  iii, 
74  Pac.  518;  27  Cyc.  607. 

[3]  But  what  shall  be  said  with  reference  to  the  adverse  claim 
which  arises  after  the  period  of  publication  has  expired  ?  It  is  then 
too  late  to  present  to  the  land  office  an  adverse  claim.  Counsel  for 
appellant  suggest  that  the  only  remedy  available  to  such  adverse 


582  ISSUANCE   OF    PATENTS. 

claimant  is  by  protest  to  the  Land  Department  against  the  issuance 
of  patent  to  the  original  application,  under  the  last  clause  of  sec- 
tion 2325,  supra,  which  reads:  "And  thereafter  no  objection  from 
third  parties  to  issuance  of  a  patent  shall  be  held  sufficient,  except 
it  be  shown  that  the  applicant  has  failed  to  comply  with  the  terms 
of  this  chapter."  A  very  able  dissertation  upon  the  meaning  of  that 
clause  is  found  in  Wight  v.  Dubois  (C.  C.)  21  Fed.  693,  wherein 
Judge  Brewer  said :  **I  think  all  that  it  covers  is  the  right  to  any- 
body to  come  in  and  enter  his  protest  or  obj  ection ;  in  other  words, 
to  say  to  the  officers  of  the  government  that  the  applicant  has  not 
complied  with  the  terms  of  the  statute,  and  to  insist  that  there  shall 
be  an  examination  by  such'  officers  to  see  if  the  terms  have  in  fact 
been  complied  with.  He  does  not  appear  as  a  party  asserting  his 
own  rights ;  but,  if  we  may,  so  to  speak,  parallel  these  proceedings 
with  those  in  a  court,  such  an  objector  appears  as  an  amicus  curiae 
— a  friend  of  the  court — to  suggest  that  there  has  been  error,  and 
that  the  proceedings  be  stayed  until  further  examination  can  be  had. 
Such  a  protest  does  not  bring  the  protestant  into  court  for  the  asser- 
tion of  his  own  title  or  rights ;  does  not  revivify  rights  lost  by  a 
failure  to  adverse.  True,  if  the  protest  or  objection  is  sustained, 
the  proceedings  will  be  set  aside,  new  ones  must  be  commenced,  and 
then  the  objector  may  be  in  a  position  to  assert  his  rights;  but,  if 
the  protest  or  objection  be  not  sustained,  the  objector,  like  an  amicus 
curiae,  has  nothing  more  to  say  in  the  matter.  In  other  words,  the 
right  to  protest  is  not  the  right  to  contest.  The  latter  is  lost  by  the 
failure  to  adverse.  The  former  remains  open  to  everyone — holders 
of  adverse  claims,  as  well  as  others.  But  the  protest  is  only  to  the 
officers  of  the  government,  challenges  only  the  applicant's  claims, 
and  in  no  manner  brings  up  for  consideration  any  claims  of  the 
protestant.  Such  a  protest  can  be  made  only  before  the  Land  De- 
partment, and,  if  there  rejected,  the  protestant  has  no  further  stand- 
ing to  be  heard  anywhere.  The  protest  cannot  be  made  the  basis  of 
any  litigation  in  the  courts,  for  the  courts  are  only  open  to  those 
who  have  rights  to  assert ;  they  sit  for  the  determination  of  contro- 
versies. They  do  not,  at  the  instance  of  strangers,  review  the  regu- 
larity of  proceedings  between  parties  who  are  competent  to  de- 
termine such  regularity,  and  who  do  not  themselves  invite  any  judi- 
cial determination."  That  this  construction  of  the  statute  is  correct 
is  manifest  from  a  review  of  the  several  paragraphs  of  chapter  6 
(sections  2318-2352,  Rev.  Stat.  U.  S.  [U.  S.  Comp.  St.  1901,  pp. 
1423-1442]). 

[4]  If  the  Land  Department  had  jurisdiction  over  conflicting 
claims  between  private  individuals,  and  the  machinery  for  determin- 
ing such  claims,  there  would  never  have  been  any  occasion  for  re- 
ferring adverse  claims  to  the  courts  for  adjudication.  It  is  only  be- 
cause the  Land  Department  cannot  determine  such  claims  that  the 
aid  of  the  courts  is  invoked.     The  Land  Department  has  held  uni- 


ADVERSE    CLAIMS    AND    PROTESTS.  5^3 

formly  that  questions  arising  over  the  failure  of  an  entryman  to  do 
the  annual  representation  work,  or  the  relocation  of  his  claim  by 
another  for  his  failure  to  do  such  work,  involve  matters  of  conflict- 
ing rights  between  rival  claimants  with  which  the  Land  Depart- 
ment does  not  concern  itself ;  but  such  questions  are  for  the  deter- 
inination  of  the  courts.  In  the  case  of  P.  Wolenberg,  supra,  the 
Secretary  of  the  Interior  further  said:  "The  annual  expenditure 
of  $ioo,  in  labor  or  improvements,  required  by  section  2324  of  the 
Revised  Statutes,  is  solely  a  matter  between  rival  or  adverse  claim- 
ants to  the  same  mineral  land,  and  goes  only  to  the  right  of  posses- 
sion, the  determination  of  which  is  committed  to  the  courts,  and  not 
to  the  Land  Department.  In  this  respect,  the  requirement  made  by 
section  2324  is  essentially  different  from  that  made  by  section  2325, 
which  makes  the  expenditure  of  S500,  in  labor  or  improvements,  a 
condition  to  the  issuance  of  patent,  and  therefore  a  matter  between 
the  applicant  for  patent  and  the  government,  the  determination  of 
which  is  committed  to  the  Land  Department."  To  the  same  effect 
are  The  Marburg  Lode  Mining  Claim,  30  Land  Dec.  Dept.  Int. 
202;  Cleveland  v.  Eureka  G.  M.  ,&  M.  Co.,  31  Land  Dec.  Dept.  Int. 
69. 

In  Barklage  v.  Russell,  29  Land  Dec.  Dept.  Int.  401,  there  was 
an  attempt  made  to  follow  out  the  suggestion  of  appellant,  in  this 
instance,  by  protesting  to  the  government  against  the  issuance  of 
patent.  The  protestant  there  alleged  that  the  patent  applicant  had 
failed  to  do  the  annual  representation  work,  and  that  he  (protestant) 
had  relocated  the  ground ;  but  the  protest  was  summarily  dismissed, 
and  Secretary  Hitchcock  said:  "The  allegations  of  the  protest 
amount  to  nothing  more  nor  less  than  the  assertion  of  a  claim  ad- 
verse to  that  of  the  entryman,  Russell,  and  arising  subsequent  to  the 
period  of  publication  of  the  notice  of  the  application  for  patent.  The 
Land  Department  has  nothing  to  do  with  questions  as  to  the  per- 
formance of  annual  expenditure  upon  mining  claims,  nor  of  alleged 
relocations  thereof  by  reason  of  failure  to  perform  such  expenditure, 
arising  under  section  2324  of  the  Revised  Statutes.  These  questions 
are  solely  matters  between  rival  or  adverse  claimants  to  mineral 
lands  and  go  only  to  the  right  of  possession  of  the  land  involved. 
The  determination  of  that  right,  between  such  claimants,  however, 
or  whenever  the  adverse  claim  may  be  alleged  to  have  had  its  origin, 
is  committed  by  the  mining  laws  to  the  courts  alone." 

[5]  It  appears,  therefore,  that  a  protest  to  the  Land  Department, 
based  upon  the  allegations  of  plaintiffs'  complaint  herein,  would 
not  receive  any  consideration  whatever.  If  the  Land  Department 
will  not  hear  the  plaintiffs,  and  the  courts  have  no  jurisdiction  to 
hear  them  as  appellant  contends,  they  are  remediless.  But  this 
cannot  be.  If  their  allegations  are  true,  they  have  a  valid,  subsist- 
ing mining  claim.  Such  a  claim  is  property  in  the  highest  sense  oi 
the  term,  subject  to  be  sold,  mortgaged,  and  inherited,  without  in- 


584  ISSUANCE   OF    PATENTS. 

fringing  the  paramount  title  of  the  government.  Cobban  v.  Meagher, 
42  Mont.  399,  113  Pac.  290;  Manuel  v.  Wulff,  152  U.  S.  505,  14 
Sup.  Ct.  651,  38  L.  Ed.  532.  According  to  the  allegations  of  this 
complaint,  plaintiffs'  property  will  be  injured  by  Kaufman's  pro- 
ceeding to  secure  patent  to  the  same  ground  ;  and  the  courts  of  this 
state  are  open  to  afford  a  remedy  for  such  injury,  or  to  prevent  it 
in  a  proper  case.    Article  3,  §  6,  Montana  Constitution. 

Our  conclusion  is  that,  if  an  adverse  claim  is  in  existence  at  any 
time  during  the  60-day  period  of  publication,  it  must  be  presented 
to  the  land  of^ce,  or  it  is  waived.  If  such  adverse  claim  does  not 
arise  until  after  the  period  of  publication  has  expired,  the  claimant 
may  invoke  the  aid  of  the  court,  in  the  first  instance,  to  quiet  his 
title  as  against  the  patent  applicant.  This  is  the  holding  in  Gillis 
V.  Downey,  85  Fed.  483,  29  C.  C.  A.  286,  approved  in  2  Lindley  on 
j\Iines,  §§  696  and  731,  and  is,  we  think,  clearly  correct. 

Some  reliance  is  placed  by  appellant  upon  the  decision  of  this 
court  in  Murray  v.  Polglase.  23  Mont.  401,  59  Pac.  439.  So  far  as 
the  decision  in  that  case  is  concerned,  it  does  not  go  further  than  to 
hold  that  these  plaintiffs  would  not  have  been  heard  to  intervene  in 
the  adverse  suit  of  Thornton  v.  Kaufman,  for  the  reason  that  they 
had  not  presented  an  adverse  claim  to  the  local  land  office.  In  the 
course  of  the  opinion,  this  court,  after  determining  that  the  interven- 
ers in  that  action  had  no  standing  in  court,  by  way  of  suggestion, 
said:  'Tf  they  have  any  right  to  the  ground  in  controversy,  they 
*  *  *  must  be  relegated  to  the  land  office,  where  they  may  be 
permitted  to  show  that  the  parties  who  may  succeed  herein  have  not 
complied  with  the  law" — and  in  support  of  this  is  cited  Lindley  on 
Mines  (ist  Ed.)  §  758,  where  the  same  suggestion  is  to  be  found. 
The  decision  in  Alurray  v.  Polglase  was  rendered  in  1899.  In  the 
second  edition  of  Lindley  on  Mines,  issued  in  1903,  the  author  adds 
to  the  suggestion  above  the  following :  "Or  the  relocator  may  pursue 
his  remedy  in  the  courts,  regardless  of  the  pendency  of  patent  pro- 
ceeding"— citing  Gillis  v.  Downey,  supra.  But,  as  shown  by  the  de- 
cided cases,  the  Land  Department  has  now  finally  adopted  the  policy 
that  it  will  not  consider  a  protest,  based  upon  such  grounds  as  plain- 
tiffs here  present,  so  that  the  suggestion  made  in  Murray  v.  Polglase 
is  now  of  no  force. 

The  order  of  the  district  court  is  afhrmed. 

Affirmed. 


CHAPTER  IX. 

MINING   LOCATIONS   AS  RELATED  TO  OTHER  RIGHTS   IN   PUBLIC   LANDS. 

Section  1. — Indian  Reservations  and  Forest  Reserves. 

KENDALL  et  al.  v.  SAN  JUAN  SILVER  MIN.  CO. 

1892.     Supreme  Court  of  the  United  States. 
144  U.  S.  658,  36  L.  ed.  583,  12  Sup.  Ct.  779. 

In  error  to  the  supreme  court  of  the  state  of  Colorado. 

Action  by  James  W.  Kendall,  Annie  G.  Shackelford,  Ruah  E. 
Dickinson,  Caroline  V.  Dickinson,  J.  C.  Dickinson,  Ellah  Dickin- 
son, and  John  W.  Jacque  against  the  San  Juan  Silver  Mining  Com- 
pany, to  determine  the  right  of  possession  to  a  mining  claim.  Judg- 
ment for  defendant,  which  was  affirmed  by  the  state  supreme  court. 
Plaintiffs  bring  error.    Affirmed. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  defendant,  a  corporation  organized  and  existing  under  the 
laws  of  Colorado,  in  October,  1880,  applied  to  the  proper  land  office 
in  that  state  for  a  mineral  patent  for  a  lode  claim  known  as  the 
"Titusville  Lode,"  in  San  Juan  county,  which  was  1,500  feet  in 
length  by  300  feet  in  width.  Within  the  time  prescribed  by  statute, 
and  during  the  month,  the  appellants  here,  Kendall  and  others,  filed 
in  the  same  land  office  an  adverse  claim  for  a  portion  of  the  premises 
of  which  the  defendant  desired  to  obtain  a  patent,  asserting  a  prior 
and  superior  right  to  the  same,  as  part  of  a  lode  known  as  "Bear 
Lode,"  which  they  had  discovered  on  the  3d  of  September,  1872, 
and  upon  which  they  had  sunk  a  discovery  shaft,  and  performed  the 
several  acts  required  to  perfect  a  mineral  location  under  the  laws 
of  the  United  States  and  the  local  rules  and  customs  of  miners. 
Within  30  days  thereafter  they  brought  the  present  action  under 
section  2326  of  the  Revised  Statutes,  to  determine,  as  between  the 
parties,  the  right  of  possession  to  the  disputed  premises,  the  issue 
of  a  patent  for  the  same  being  dependent  upon  such  determination. 
In  their  complaint  they  allege  the  performance  of  the  labor  required, 
and  all  other  acts  necessary  to  preserve  the  lode  from  forfeiture. 
That  lode,  as  originally  located,  extended  1,500  feet  in  length  and 
100  feet  on  each  side  of  the  center  of  the  vein.  In  October,  1878, 
the  locators  filed  an  additional  certificate  of  location  in  the  local  land 

585 


586  LOCATIONS    AND   OTHER    RIGHTS. 

office,  claiming  150  feet  on  each  side  of  the  center.  And  they  aver 
that  the  Titusville  lode,  claimed  by  the  defendant  corporation,  is  a 
junior  location,  and  includes  in  length  1,200  feet  of  the  surface 
ground  of  the  Bear  lode,  and  in  width  covers  more  than  the  south 
half  of  the  surface  ground  for  the  1,200  feet. 

The  defendant,  in  its  answer,  denies  that  the  ground  in  contro- 
versy comprised  part  of  the  unappropriated  public  domain  of  the 
United  States,  and  that  it  was  open  to  location  on  the  3d  day  of 
September,  1872,  as  set  forth  by  the  plaintiffs,  and  alleges  that  at 
that  date  the  ground  embraced  a  portion  of  a  certain  tract  of  land 
which,  by  treaty  between  the  United  States  and  certain  confederated 
bands  of  the  Ute  Indians  in  Colorado,  concluded  March  2,  1868,  and 
proclaimed  on  the  6th  of  November  of  the  same  year,  had  been  re- 
served for  the  use  and  occupancy  of  the  Indians,  and  that  the  In- 
dian title  to  the  tract  was  not  extinguished  until  March,  1874.  15 
St.  p.  619.  The  answer  also  alleges  that  the  Titusville  lode  claim 
was  located  on  the  29th  day  of  August,  1874;  that  all  acts  were  done 
necessary  to  constitute  a  valid  location  of  the  premises ;  and  that 
the  legal  title  to  the  lode,  and  the  right  to  its  possession,  had,  by 
various  conveyances  from  the  original  locators,  become  vested  in  the 
defendant;  and  it  prays  judgment  therefor. 

By  the  terms  of  the  treaty  mentioned,  a  tract  of  country,  which 
included  the  mining  property  in  question,  was  set  apart  for  the  ab- 
solute and  undisturbed  use  and  occupation  of  the  Indians  therein 
named,  and  for  such  other  friendly  tribes  or  individual  Indians  as, 
from  time  to  time,  they  might  be  willing,  with  the  consent  of  the 
United  States,  to  admit  among  them ;  and  the  United  States  agreed 
that  no  persons  except  those  designated,  and  such  officers,  agents, 
and  employes  of  the  government  as  might  be  authorized  to  enter 
upon  Indian  reservations  in  discharge  of  duties  enjoined  by  law, 
should  ever  be  permitted  to  "pass  over,  settle  upon,  or  reside  in  the 
territory  described,"  except  as  therein  otherwise  provided.  15  St. 
pp.  619,  620.  The  effect  of  the  treaty  was  to  exclude  all  intrusion 
for  mining  or  other  private  pursuits  upon  the  territory  thus  reserved 
for  the  Indians.  It  prohibited  any  entry  of  the  kind  upon  the  prem- 
ises, and  no  interest  could  be  claimed  or  enforced  in  disregard  of  this 
provision.  Not  until  the  withdrawal  of  the  land  from  this  reserva- 
tion of  the  treaty  by  a  new  convention  with  the  Indians,  and  one 
which  would  throw  the  lands  open,  could  a  mining  location  thereon 
be  initiated  by  the  plaintiffs.  The  location  of  the  Bear  lode,  having 
been  made  while  the  treaty  was  in  force,  was  inoperative  to  confer 
any  rights  upon  the  plaintiffs.  Whatever  rights  to  mining  land  they 
subsequently  possessed  upon  the  original  Indian  tract  were  founded 
upon  a  new  location,  made  more  than  two  years  after  the  withdrawal 
of  the  reservation,  and  after  the  Titusville  lode  had  been  located  by 
the  defendant.  Had  the  plaintiffs,  immediately  after  the  withdrawal 
of  the  reservation,  relocated  their  Bear  lode,  their  position  would 


INDIAN  RESERVATIONS  AND  FOREST  RESERVES.        587 

have  been  that  of  original  locators.  They  would  then  have  been 
within  the  rule  in  Noonan  v.  Alining  Co.,  121  U.  S.  393,  7  Sup.  Ct. 
Rep.  911.  That  rule  was  this:  That,  where  a  party  was  in  posses- 
sion of  a  mining  claim  on  the  withdrawal  of  a  reservation  caused 
by  a  treaty  with  the  Indians,  with  the  requisite  discovery,  with  sur- 
face boundaries  sufficiently  marked,  with  a  notice  of  location  posted, 
and  with  a  disclosed  vein  of  ore,  he  could,  by  adopting  what  had 
been  done,  and  causing  a  proper  record  to  be  made,  and  performing 
the  amount  of  labor  or  making  the  improvements  necessary  to  hold 
the  claim,  date  his  rights  from  that  day.  But  such  was  not  the  case 
here.  The  reservation  by  the  treaty  was  withdrawn  in  March,  1874 ; 
the  Titusville  lode  was  located  on  the  29th  day  of  August,  1874 ;  and 
the  Bear  lode  of  the  plaintiffs  was  not  relocated  until  two  years 
afterwards. 

Whatever  rights,  therefore,  the  plaintiffs  had,  subsequently  to  the 
withdrawal  of  the  reservation,  in  the  premises  claimed  by  the  de- 
fendant, arose  from  its  disclaimer.  By  that  disclaimer  the  company 
relinquished  to  the  plaintiffs  such  portion  of  their  Bear  lode,  \vith 
surface  width  of  50  feet,  as  came  in  conflict  with  the  premises 
claimed  by  it  under  the  Titusville  location ;  and,  upon  its  motion  in 
the  trial  court,  judgment  was  entered,  pursuant  to  such  disclaimer, 
for  the  plaintiffs  for  the  amount  disclaimed  and  for  the  defendant 
for  the  residue. 

The  plaintiffs  now  seek,  by  their  writ  of  error,  to  recover  the  resi- 
due of  the  Titusville  lode,  insisting  that  under  the  decision  in  Noo- 
nan ^•.  ^dining  Co.  they  have  a  right  to  all  the  premises  which  were 
covered  by  their  illegal  location  during  the  pendency  of  the  Indian 
treaty.  But  such  is  not  the  proper  construction  of  that  decision. 
There  was  in  that  case  no  new  location  by  different  parties,  after  the 
removal  of  the  reservation,  to  interfere  with  the  old  location,  then 
renewed,  and  with  a  proper  record. 

There  is  another  view  of  this  case,  which  leads  to  the  same  conclu- 
sion. Section  2324  of  the  Revised  Statutes  makes  the  manner  of 
locating  mining  claims  and  recording  them  subject  to  the  laws  of  the 
state  or  territory,  and  the  regulations  of  each  mining  district,  when 
they  are  not  in  conflict  with  the  laws  of  the  United  States.  The  act 
of  Colorado  of  February  13,  1874,  requires  the  discoverer  of  a  lode, 
within  three  months  from  the  date  of  discovery,  to  record  his  claim 
in  the  office  of  the  recorder  of  the  county  in  which  the  lode  is  situated 
by  a  location  certificate. 

It  also  provides  that  a  location  certificate  of  a  lode  claim  which 
shall  not  contain  the  name  of  the  lode,  the  name  of  the  locator,  the 
date  of  the  location,  the  number  of  linear  feet  claimed  on  each  side 
of  the  discovery  shaft,  the  general  course  of  the  lode,  and  such  de- 
scription as  shall  identify  the  claim  with  reasonable  certainty,  shall 
be  void. 

The  reservation  of  the  premises  in  controversy  by  force  of  the 


588  LOCATIONS    AND   OTHER   RIGHTS. 

Indian  treaty  was  extinguished  April  29,  1874.  On  that  date  the 
premises  in  controversy  were  open  to  location,  and  within  three 
months  afterwards  the  duty  rested  upon  the  plaintiffs  to  record 
the  certificate  of  the  location  of  their  lode,  if  they  desired  to  preserve 
any  right  in  it.  No  such  record  of  their  location  was  made  within 
that  time.  No  record  was  made  or  desired  by  them  until  an  addi- 
tional certificate  of  location  was  filed  by  them,  claiming  150  feet  on 
each  side  of  the  center  of  their  vein,  which  was  not  done  until  Octo- 
ber, 1878.  As  they  failed  to  comply  with  the  law  in  making  a  record 
of  the  location  certificate  of  their  lode,  it  does  not  He  with  them  to 
insist  that  their  wrongful  entry  upon  the  premises  during  the  exist- 
ence of  the  Indian  reservation  operated  in  their  favor  against  par- 
ties who  went  upon  the  premises  after  they  had  become  a  part  of  the 
public  domain,  and  made  a  proper  location  certificate  and  record 
thereof,  and  complied  in  other  particulars  with  the  requirements  of 
the  law. 

Judgment  affirmed.^ 


UNITED  STATES  v.  RIZZINELLI  et  al. 
1910.     District  Court,  D.  Idaho,  N.  D.     182  Fed.  676. 

Basil  Rizzinelli  and  another  were  convicted  of  maintaining  sa- 
loons on  mining  claims  within  the  limits  of  the  Coeur  d'Alene  Na- 
tional Forest  Reserve  without  a  permit.  On  demurrer  to  indictment. 
Overruled. 

Dietrich,  District  Judge." — The  defendants  are  charged  with  the 
maintenance  of  saloons  upon  mining  claims  within  the  limits  of  the 
Coeur  d'Alene  National  Forest  without  a  permit,  and  in  violation  of 
the  rules  and  regulations  of  the  Secretary  of  Agriculture.  The 
claims  were  duly  located,  subsequent  to  the  creation  of  the  forest 
reserve,  and  they  are  possessory  only,  no  application  for  patent  ever 
having  been  made.  The  technical  sufficiency  of  the  indictment  is  not 
called  into  question,  but  it  is  urged :  First,  that  the  provision  of  the 
statute  upon  which  the  rules  referred  to  are  founded  is  unconstitu- 
tional, and  the  rules,  therefore,  void,  because  the  statute  itself  does 
not  sufficiently  define  the  acts  to  be  punished,  and  because  it  at- 
tempts to  delegate  to  an  executive  officer  legislative  power ;  and,  sec- 
ond, that,  even  if  the  statute  be  held  to  be  valid,  it  cannot  properly  be 
construed  as  conferring  authority  upon  the  Secretary  of  Agriculture 
to  make  rules  applicable  to  the   lands   embraced  in  valid  mining 

^  See  Le  Clair  v.  Hawley,  18  Wyo.  23,  102  Pac.  853.  On  Indian  reserva- 
tions, military  reservations,  national  parks,  forest  reserves  and  reservoir  and 
irrigation  works  sites,  see  Costigan,  Mining  Law,  89-94. 

^  Parts  of  the  opinion  are  omitted. 


INDIAN    RESERVATIONS    AND    FOREST    RESERVES.  589 

claims,  whether  the  same  were  located  before  or  after  the  creation 
of  the  forest  reserve.     *     *     * 

Concretely  stated,  the  second  question  is  whether  or  not,  assuming 
that  tht  maintenance  of  a  saloon  upon  public  lands  within  a  national 
forest  to  which  no  previous  claim  of  any  kind  has  attached  consti- 
tutes a  criminal  ofifense,  a  like  offense  is  committed  when  such  a 
saloon  is  maintained  upon  forest  reserve  lands,  embraced  within 
a  valid  mining  claim,  located  after  the  creation  of  the  reserve.   *   *  * 

The  only  express  reference  in  the  act  to  the  location  of  mining 
claims  is  found  in  the  last  sentence  of  the  second  paragraph  above 
quoted,  which  in  full  is : 

"Nor  shall  anything  herein  prohibit  any  person  from  entering  upon  such 
forest  reservations  for  all  proper  and  lawful  purposes,  including  that  of  pros- 
pecting, locating  and  developing  the  mineral  resources  thereof:  Provided,  that 
such  persons  comply  with  the  rules  and  regulations  covering  such  forest  res- 
ervations.'" 

And  the  last  sentence  of  the  last  paragraph  above  quoted,  namely : 

"And  any  mineral  lands  in  any  forest  reservation  which  have  been,  or  which 
may  be  shown  to  be  such,  and  subject  to  entry  under  the  existing  mining  laws 
of  the  United  States  and  the  rules  and  regulations  applying  thereto,  shall  con- 
tinue to  be  subject  to  such  location  and  entry,  notwithstanding  any  provisions 
herein  contained." 

It  is  the  contention  of  defendants  that  the  valid  location  of  a  min- 
ing claim  ipso  facto  withdraws  the  land  embraced  therein  from  the 
jurisdiction  of  the  Secretary  of  Agriculture,  and  that  therefore  the 
rules  under  consideration  are  wholly  inapplicable.  Upon  the  other 
hand,  the  government  points  to  the  fact  that  while  qualified  persons 
are  authorized  to  locate  claims  upon  lands  containing  valuable  min- 
eral deposits,  within  as  well  as  without  the  boundaries  of  a  reserva- 
tion, there  is  no  language  in  the  act  justifying  the  conclusion  that  by 
the  location  of  a  mining  claim  the  lands  embraced  therein  are  with- 
drawn from  the  reservation,  and  much  significance  is  attached  to  the 
clause  which  provides  that  the  right  to  go  upon  reservations  for  "all 
proper  and  lawful  purposes,  including  that  of  prospecting,  locating, 
and  developing  the  mineral  resotirces,"  is  expressly  conditioned  upon 
a  compliance  with  the  rules  and  regulations  covering  forest  reserva- 
tions. 

For  a  definition  of  the  rights  of  the  locator  upon  public  lands,  both 
parties  refer  to  section  2322  of  the  Revised  Statutes  of  the  United 
States  (U.  S.  Conip.  St.  1901,  p.  1425),  where  it  is  declared  that: 

"The  claimant  shall  have  the  exclusive  right  of  possession,  and  enjoyment 
of  all  the  surface  (of  the  claim),  and  of  all  veins,  lodes,  and  ledges,  throughout 
their  entire  depth,  the  top  or  apex  of  which  lies  inside  of  such  surface  lines, 
extended  downward  vertically,"  etc. 


590  LOCATIONS    AND   OTPIER   RIGHTS. 

It  is  conceded  by  the  government  that  by  the  forest  reserve  act  of 
June  4,  1897,  Congress  did  not  intend  to,  and  did  not,  Hmit  or  quaHfy 
the  rights  of  a  locator,  or  confer  any  authority  upon  the  Secretary 
of  Agriculture,  by  regulation  or  otherwise,  to  limit  or  qualify  such 
rights,  or  to  intrude  upon  the  exclusive  possession  or  infringe  upon 
the  exclusive  "enjoyment"  guaranteed  to  the  locator  under  section 
2322 ;  in  short,  that  the  rights  of  a  locator  of  a  mining  claim  within 
the  boundaries  of  a  forest  reserve  are  substantially  the  same  as  those 
of  one  who  locates  such  a  claim  upon  the  public  domain.  It  is  also 
conceded  that  the  right  of  exclusive  possession  runs  against  the  gov- 
ernment, as  well  as  against  third  persons.  Obviously,  therefore,  the 
controversy  is  primarily  confined  to  a  consideration  of  the  purpose  to 
which  the  locator  may  ordinarily  and  under  general  law  properly  de- 
vote the  surface  possession  of  his  mining  claim ;  the  defendants  con- 
tending that  they  may  use  the  same  "for  any  purpose,  whether  the 
same  be  consistent  with  mining  or  not,"  and,  upon  the  other  hand, 
the  government  asserting  that  a  locator  is,  under  section  2322,  au- 
thorized to  use  the  surface  of  his  mining  claim  only  for  purposes 
connected  with  or  incident  to  the  exploration  and  recovery  of  the 
mineral  therein  contained. 

It  is  familiar  law  that  the  citizen  may  acquire  any  one  of  three 
possible  estates  in  mineral  lands  upon  the  public  domain.  He  may 
content  himself  with  locating  a  claim  in  compliance  with  the  statutes 
and  rules  and  regulations,  in  which  case  he  acquires  a  possessory 
title  only,  both  the  equitable  and  legal  title  remaining  in  the  United 
States ;  or,  in  the  second  place,  after  making  such  location,  he  may 
comply  with  the  further  requirements  of  the  law,  and  pay  the  re- 
quired purchase  price,  thus  acquiring  the  equitable  title,  the  legal 
title  still  remaining  in  the  United  States  ;  or  he  may  proceed  one  step 
further,  and  obtain  patent,  thus  divesting  the  government  of  all  in- 
terest, both  legal  and  equitable. 

The  defendants  here  have  the  possessory  title  only.  They  have  a 
distinct  but  qualified  property  right,  and,  even  if  we  assume  that 
their  interest  is  vested,  it  is  one  which  may  be  abandoned  at  any 
moment,  or  forfeited.  The  primary  title,  the  paramount  ownership, 
is  in  the  government,  and  upon  abandonment  by  the  locator,  or  his 
failure  to  comply  with  the  conditions  upon  which  his  continuing 
right  of  possession  depends,  the  entire  estate  reverts  to  the  govern- 
ment ;  all  the  time,  it  retains  the  title,  with  a  valuable  residuary  and 
reversionary  interest.  This  interest,  whatever  it  may  be,  it  has  the 
right  to  protect  and  obviously  the  interest  which  it  retains  is  the  en- 
tire estate,  less  that  which  is  granted  by  the  terms  of  section  2322, 
providing  that  locators  shall  have  "the  exclusive  right  of  possession 
and  enjoyment  of  all  the  surface  of  their  locations."  The  true  mean- 
ing of  this  granting  clause  it  is  therefore  of  fundamental  importance 
to  determine,  for  by  its  terms,  properly  interpreted,  the  estate  of  the 
defendants  in  the  lands  which  they  occupy  is  to  be  measured,  and, 


INDIAN    RESERVATIONS    AND    FOREST   RESERVES.  59^ 

in  the  absence  of  any  express  declaration  in  the  act  of  June  4,  1897, 
upon  the  nature  and  extent  of  this  estate  largely  depends  the  ques- 
tion whether  or  not  there  is  such  incompatibility  between  the  charac- 
ter of  a  mining  claim,  and  the  status  of  lands  in  a  forest  reserve,  that 
the  valid  location  of  the  former  operates  to  withdraw  the  lands  em- 
braced therein  from  the  latter.  The  inquiry  is  substantially  limited 
to  the  meaning  of  the  phrase  "exclusive  enjoyment,"  for,  notwith- 
standing the  existence  of  the  Coeur  d'Alene  forest  reserve,  it  is  con- 
ceded that  the  defendants  are  entitled  to  the  exclusive  possession  of 
their  claim  not  only  as  against  third  persons,  but  as  against  the 
United  States.  The  government  is  not  seeking  to  qualify  or  limit  the 
possession  of  the  defendants  or  in  any  respect  to  intrude  thereon,  but 
only  to  restrict  the  uses  to  which  such  possession  shall  be  devoted. 
The  defendants  have  a  right  to  the  exclusive  enjoymentof  the  sur- 
face of  their  claims,  and  our  task  is  to  determine  what  is  meant  by 
the  word  "enjoyment"  as  the  name  is  used  in  the  statute.  It  is  not 
self-explanatory,  or  unequivocal,  and  must  be  interpreted  in  the  light 
of  the  general  purpose  of  the  law  in  which  it  is  found,  and  in  har- 
mony with  other  provisions  thereof.  Consciously  or  unconsciously 
we  necessarily  read  something  into  the  statute  which  is  not  therein 
expressed.  We  may  differ  as  to  what  should  be  interpolated,  but 
that  there  must  be  some  interpolation  may  not  be  doubted.  The  gov- 
ernment inserts,  after  the  word  "enjoyment,"  the  phrase  "for  min- 
ing purposes,"  and  the  defendants  the  phrase  "for  all  purposes."  No 
other  language  is  suggested,  and,  indeed,  no  middle  ground  appears 
to  be  possible;  the  "enjoyment"  is  either  for  mining  purposes  alone, 
or  for  all  purposes  without  qualification  or  restriction.  Under  a 
familiar  rule  of  statutory  construction,  the  necessity  of  reading  into 
the  statute  one  or  the  other  of  these  two  phrases  to  make  it  complete, 
and  its  adaptability  to  either  of  them,  of  itself  operates  strongly  to 
determine  the  question  in  favor  of  the  government,  for  it  is  well 
settled  that  in  public  grants  nothing  passes  except  that  which  is  clear- 
ly and  specifically  granted,  and  all  doubts  are  to  be  resolved  in 
favor  of  the  government.  Oregon  R.  &  N.  Co.  v.  Oregonian  Ry. 
Co.,  130  U.  S.  I,  9  Sup.  Ct.  409,  32  L.  Ed.  837;  Coosaw  M.  Co.  v. 
South  Carolina,  144  U.  S.  550,  12  Sup.  Ct.  689,  36  L.  Ed.  537.  But, 
independent  of  this' rule,  considerations  pertinent  to  the  construction 
of  private  grants  and  contracts  clearly  lead  to  the  conclusion  that  the 
right  of  enjoyment  which  Congress  intended  to  grant  extends  only 
to  mining  uses.  The  general  purpose  of  the  mineral  laws  is  well  un- 
derstood; it  was  to  encourage  citizens  to  assume  the  hazards  of 
searching  for  and  extracting  the  valuable  minerals  deposited  in  our 
public  lands.  In  form  the  grant  is  a  mere  gratuity ;  but,  in  consid- 
ering the  propriety  of  such  legislation,  it  may  well  have  been  thought 
that  by  reason  of  the  stimulus  thus  given  to  the  production  of  min- 
eral wealth,  and  rendering  the  same  available  for  commerce  and  the 
arts,  the  public  would  indirectly  receive  a  consideration  commensu- 


592  LOCATIONS    AND   OTHER    RIGHTS. 

rate  with  the  value  of  the  grant.  In  that  view  doubtless  the  legisla- 
tion has  for  a  generation  been  generally  approved  as  embodying  a 
wise  public  policy.  But  under  what  theory  should  the  public  gratui- 
tously bestow  upon  the  individual  the  right  to  devote  mineral  lands 
any  more  than  any  other  public  lands  to  valuable  uses  having  no  rela- 
tion to  mining,  and  for  what  reason  should  we  read  into  the  statute 
such  a  svirprising  and  unexpressed  legislative  intent  ? 

With  much  earnestness  the  consideration  is  urged  that  it  has  be- 
come more  or  less  customary  to  erect  valuable  buildings  upon  lands 
embraced  in  mineral  claims  to  be  used  for  purposes  having  no  neces- 
sary relation  to  mining  operations,  and  that  great  hardship  would 
ensue  and  important  property  rights  would  be  confiscated  if  the  lo- 
cator's "enjoyment"  of  the  surface  be  limited  to  uses  incident  to  min- 
ing. But  even  if  it  be  true,  as  suggested,  that  in  many  localities  sites 
for  dwelling  houses  and  business  structures  could  not  be  conveniently 
obtained  except  upon  lands  containing  valuable  mineral  deposits  and 
embraced  in  located  claims,  the  fact  is  without  significance  and  lends 
no  support  to  the  defendants'  contention.  If  we  assume  that  Con- 
gress was  cognizant  of  or  anticipated  such  conditions,  we  may  fur- 
ther reasonably  assume  that  it  was  thought  that  ample  protection 
against  embarrassment  to  the  mining  industry  from  such  a  source 
was  furnished  in  other  provisions  of  the  law.  At  the  same  time  the 
government  confers  upon  the  locator  the  right  to  possess  and  enjoy 
the  surface  of  a  mining  claim  for  mining  purposes  without  the  pay- 
ment of  any  consideration  therefor,  it  offers  for  a  small  considera- 
tion to  convey  to  him  the  entire  estate.  The  government  gives  the 
mineral  to  him  who  finds  it,  and,  for  purposes  incident  to  the  extrac- 
tion thereof,  permits  him  to  possess  and  use  the  ground  in  which 
it  is  found.  It  does  not  give  him  the  ground,  but  empowers  him  to 
purchase  it,  and  that  he  may  do  if  he  desires  its  permanent  and  un- 
restricted use.  The  unqualified  title  to  the  land  embraced  in  a  valid 
possessory  claim  thus  being  made  available  to  the  locator  for  the 
moderate  prices  prescribed  by  law,  there  is  no  force  to  the  argument 
implied  in  this  contention.  Nor  is  there  any  merit  in  the  suggestion 
that  the  custom  of  so  using  the  surface  of  unpatented  claims  with- 
out objection  from  the  government  is  so  prevalent  as  to  imply  assent 
or  acquiescence  on  the  part  of  Congress  in  its  unrestricted  use.  In 
the  absence  of  material  waste,  it  would  not  be  strange  if,  as  a  general 
rule,  officers  of  the  government  should  ignore  the  occupancy  of 
such  lands  for  purposes  beyond  those  authorized  by  law,  so  long  as 
it  is  without  substantial  injury.  But  such  inaction  serves  neither  to 
shed  light  upon  the  original  legislative  intent,  nor  to  confer  on  the 
occupant  the  legal  right  to  continue  such  occupancy  over  the  objec- 
tion of  the  government. 

The  rights  of  a  locator  of  a  mining  claim,  and  the  nature  of  his 
estate  therein,  have  not  infrequently  been  considered  by  the  Supreme 
Court  of  the  United  States.    That  the  discovery  of  valuable  mineral 


INDIAN    RESERVATIONS    AND    FOREST    RESERVES.  593 

and  the  proper  location  of  his  claim  operate  to  vest  in  the  locator  a 
substantial  interest  may  not  be  doubted.  The  interest  thus  acquired 
is  a  valuable  property  right  which  may  be  mortgaged,  transferred, 
inherited,  and  taxed ;  the  right  of  possession  is  good  against  all  the 
world  including  the  United  States.  Gwillim  v.  Donnellan,  115  U.  S. 
45,  5  Sup.  Ct.  1 1 10,  29  L.  Ed.  348;  Manuel  v.  Wulff,  152  U.  S.  505, 
14  Sup.  Ct.  651,  38  L.  Ed.  532;  Belk  v.  Meagher,  104  tj.  S.  279,  26 
L.  Ed.  735 ;  Forbes  v.  Gracey,  94  U.  S.  762,  24  L.  Ed.  313 ;  St.  Louis 
Mining  Co.  v.  Montana  Mining  Co.,  171  U.  S.  650,  19  Sup.  Ct.  61, 
43  L.  Ed.  320;  Elder  v.  Wood,  208  U.  S.  226,  28  Sup.  Ct.  263,  52 
L.  Ed.  464.  In  some  of  these  cases,  and  in  others,  meager  expres- 
sions may  be  found  incidentally  touching  upon  the  question  here  in 
controversy ;  but  in  none  of  them,  so  far  as  I  am  aware,  was  it  either 
involved  or  discussed.  And  indeed  there  has  come  under  my  ob- 
servation no  reported  case  from  any  court  in  which  the  point  may  be 
said  to  have  been  decided,  except  possibly  Teller  v.  United  States, 
113  Fed.  273,  51  C.  C.  A.  230,  where,  in  a  well-considered  opinion, 
the  Circuit  Court  of  Appeals  of  the  Eighth  Circuit  reached  a  con- 
clusion which  it  is  thought  strongly  supports  the  present  contention 
of  the  government.  Speaking  of  the  rights  conferred  by  that  part 
of  the  statute  which  we  have  been  considering,  the  court  says : 

"It  gave  him  (the  locator)  nothing  but  the  right  of  present  and  exclusive 
possession  for  the  purpose  of  mining.  It  did  not  divest  the  legal  title  of  the 
United  States,  or  impair  its  right  to  protect  the  land  and  its  product,  by  either 
civil  or  criminal  proceedings  from  trespass  or  waste.  *  *  *  'Phe  two  titles 
recognized  by  the  United  States  confer  totally  different  rights.  The  first  one 
confers  a  right  (and  it  may  properly  enough  be  said  to  be  vested  in  the  lo- 
cator) to  the  possession  of  the  land  for  the  purpose  of  carrying  on  his  mining 
operations  as  long  as  he  performs  the  required  conditions." 

Holding,  therefore,  that  the  right  of  a  locator  of  a  mining  claim 
to  the  ''enjoyment"  of  the  surface  thereof  is  limited  to  uses  incident 
to  mining  operations,  no  serious  difficulty  is  encountered  in  reach- 
ing the  further  conclusion  that  forest  reserve  lands  embraced  in  a 
mining  claim  continue  to  constitute  a  part  of  the  reserve,  notwith- 
standing the  mineral  location,  subject,  of  course,  to  all  the  legal 
rights  and  privileges  of  the  locator.  The  paramount  ownership  be- 
ing in  the  government,  and  it  also  having  a  reversionary  interest  in 
the_  possessory  right  of  the  locator,  clearly  it  has  a  valuable  estate 
which  it  is  entitled  to  protect  against  waste  and  unlawful  use.  It  is 
scarcely  necessary  to  say  that  it  is  the  substantial  property  right  of 
the  government,  and  not  the  extent  to  which  such  right  inay  be  in- 
fringed in  the  present  case,  that  challenges  our  consideration.  The 
burden  imposed  upon  the  principal  estate  by  the  construction  and 
maintenance  of  a  little  saloon  building  may  be  trivial,  and  the  damage 
wholly  unappreciable.  But  that  is  not  to  the  point.  If  a  worthless 
shrub  may  as  a  matter  of  legal  right  be  destroyed  in  the  location 

38 — [Mining  L.wv 


594  LOCATIONS    AND   OTHER    RIGHTS. 

of  a  saloon,  the  entire  claim  may  be  stripped  of  its  timber,  however 
valuable,  to  give  place  for  other  saloons  and  other  structures  having 
no  connection  with  the  operation  of  the  mine.  To  concede  any  such 
right  at  all  is  necessarily  to  concede  a  right  without  limit ;  there  is  no 
middle  ground.  It  is  therefore  repeated  that,  subject  to  the  locator's 
legitimate  use  for  mining  purposes,  the  government  continues  to  be 
the  owner  of  the  land,  and  is  interested  in  conserving  its  value  and 
preventing  injury  and  waste.  That  being  true,  in  the  absence  of  ex- 
press language  evincing  an  intent  on  the  part  of  Congress  to  with- 
draw such  lands  from  the  jurisdiction  of  the  forestry  service,  there 
is  no  reason  to  infer  any  such  intent.  Upon  the  other  hand,  it  is 
much  more  reasonable  to  assume  that  Congress  advisedly  concluded 
to  leave  the  government's  interest  therein  subject  to  the  jurisdiction 
and  under  the  protection  of  the  department  that  is  responsible  for 
the  care  and  protection  of  the  surrounding  lands  and  forests.  The 
locator's  rights  are  not  curtailed ;  there  is  no  intrusion  upon  his 
possession;  his  right  of  "enjoyment"  is  not  necessarily  qualified  or 
infringed  by  the  retention  in  the  forest  reserve.  He  may  possess 
and  utilize  the  entire  claim,  including  the  surface,  for  all  the  purposes 
and  to  the  same  extent  for  and  to  which  he  could  have  possessed  and 
used  it  if  no  forest  reserve  existed.  To  hold  that  the  defendants  are 
indictable  for  maintaining  a  saloon  upon  their  mining  claim  in  the 
reserve  is  not  to  hold  that  their  rights  as  locators  are  less  because  the 
lands  are  in  the  reservation  than  they  would  be  if  the  claims  were 
upon  the  open  public  domain.  In  neither  case  does  the  location  of 
the  claim  confer  the  right  to  maintain  a  saloon  thereon.  The  only  dif- 
ference is  that  a  remedy  is  provided  in  the  one  case  which  does  not 
exist  in  the  other.  In  both  cases  the  government  has  a  remedy  by 
way  of  civil  action ;  upon  the  forest  reserve,  assuming  the  law  to  be 
valid,  it  has  the  additional  remedy  of  a  criminal  prosecution,  of 
which  it  is  here  availing  itself. 

In  reaching  this  conclusion  I  have  not  thought  it  necessary  to  con- 
sider the  precise  meaning  and  application  of  that  portion  of  the  act 
of  June  4,  1897,  which  recognizes  the  right  of  persons  to  enter  upon 
the  forest  reservations  "for  all  proper  and  lawful  purposes  including 
that  of  prospecting,  locating,  and  developing  the  mineral  resources 
thereof;  provided,  that  such  persons  comply  with  the  rules  and  regu- 
lations covering  the  said  forest  reservations."  At  the  oral  argument 
there  was  some  suggestion  by  counsel  for  the  government  that  in 
this  language  is  to  be  found  authority  for  the  Secretary  to  make 
rules  regulating  mining  operations  carried  on  upon  valid,  located 
mining  claims.  The  point,  however,  does  not  here  call  for  any  ex- 
pression of  opinion,  for  it  is  not  presently  involved.  The  defendants 
are  not  charged  with  the  violation  of  such  a  rule,  and  so  far  as  I  am 
advised  no  such  regulations  have  been  promulgated.  The  charge 
against  the  defendants  is  not  of  carrying  on  mining  operations  with- 


RAILROAD    LAND   GRANTS.  595 

out  a  permit,  but  of  transacting  other  business  having  no  relation  to 
such  operations. 

For  the  reasons  stated,  the  demurrer  will  be  overruled. 


Section  2. — Railroad  Land  Grants. 

TRAPHAAGEN  et  al.  v.  KIRK. 
1904.     Supreme  Court  of  Montana.     30  Mont.  562,  '/'/  Pac.  58. 

Bill  by  F.  W.  Traphaagen  and  another  against  Thomas  Kirk. 
From  a  decree  in  favor  of  defendant,  plaintiffs  appeal.    Affirmed. 

Clayberg,  C.  C. — This  is  an  appeal  from  a  judgment  against  plain- 
tiffs. The  action  was  brought  for  the  specific  performance  of  a  con- 
tract for  the  conveyance  of  land.  Defendant  filed  a  demurrer  to  the 
complaint,  which  was  sustained  by  the  court,  and,  plaintiffs  having 
elected  to  stand  upon  their  complaint,  judgment  followed  for  de- 
fendant. 

The  cause  of  action  set  forth  in  the  complaint  is  very  peculiar,  and 
the  allegations  of  the  complaint  are,  briefly,  as  follows :  That  on  and 
prior  to  February  23,  1900,  the  defendant  was  the  owner,  by  con- 
veyance from  the  Northern  Pacific  Railway  Company,  of  section  23, 
township  3  south,  of  range  3  east,  Gallatin  county,  and  in  the  posses- 
sion thereof  ;  that  he  was  also  the  owner  of  the  right  to  use  the  waters 
of  Elk  creek  in  connection  with  said  land ;  that  plaintiffs,  prior  to 
February  23,  1900,  discovered  upon  said  land  "a  vein  or  lode  of 
corundum-bearing  rock,"  and  believing  said  land  to  be  unoccupied 
land  of  the  United  States,  and  said  vein  or  lode  open  to  location,  duly 
located  a  claim  "upon  and  along  said  vein"  upon  and  across  said 
land  ;  that  the  United  States,  in  its  grant  of  this  land  to  the  Northern 
Pacific  Railway  Company,  reserved  and  exempted  therefrom  "all 
minerals  found  in  the  soil  of  said  real  estate,"  and  that  the  railway 
company  made  the  same  reservation  in  its  conveyance  to  defendant ; 
that  prior  to  June  30,  1897,  the  proper  mineral  land  commissioners 
of  the  United  States  reported  this  land  as  nonmineral,  and  classified 
it  as  such,  whereupon  the  railway  company  applied  to  the  Commis- 
sioner of  the  General  Land  Office  for  leave  to  enter  it,  which  applica- 
tion was  approved,  and  on  July  12,  1897,  a  patent  was  issued  to  the 
railway  company,  which  reserved  "all  minerals  contained  in  the  soil" 
of  said  land,  and  that  afterwards  the  railway  company  conveyed  to  the 
defendant,  making  the  same  reservation ;  that  on  or  about  February 
23.  1900.  plaintiffs  informed  defendant  that  they  had  discovered  this 
vein,  and  had  located  and  staked  a  mining  claim  upon  said  land,  and 
that  the  claim,  if  properly  worked,  would  be  of  great  value ;  that  by 
reason  of  the  grant  to  the  defendant  and  his  predecessors,  and  the 


596  LOCATIONS    AND   OTHER    RIGHTS. 

reservations  therein  contained,  the  plaintiffs  and  defendant  were  in 
doubt  as  to  their  respective  legal  rights  in  and  to  the  aforesaid  vein ; 
that  it  was  recognized  by  the  respective  parties  that  such  rights  could 
only  be  determined  by  litigation,  which  might  be  further  complicated 
by  the  assertion  of  the  rights  of  the  government  and  the  railway 
company,  respectively ;  that  for  the  purpose  of  avoiding  such  litiga- 
tion and  preventing  costs,  expenses,  and  delays,  and  for  the  purpose 
of  amicably  settling  their  differences,  and  in  consideration  of  the  dis- 
covery and  location  of  this  claim,  and  of  the  mutual  promises  and 
agreements  between  the  parties,  it  was  agreed  that  plaintiffs  should 
transfer  to  the  defendant  an  undivided  one-third  interest  in  said  lead 
or  lode,  and  that  defendant  should  transfer  to  plaintiffs  an  undivided 
two-thirds  interest  in  said  lead  or  lode,  together  with  the  necessary 
amount  of  real  estate  covered  by  said  location  to  enable  the  lode  to 
be  operated,  and  also  a  right  to  the  use  of  the  waters  of  Elk  creek 
necessary  to  the  mining  and  treatment  of  ores  and  the  operation  of 
said  mine ;  that  the  respective  transfers  should  be  mutually  made 
within  a  reasonable  time  from  the  date  of  said  agreement ;  that  after- 
wards, and  prior  to  the  commencement  of  the  suit,  and  prior  to  the 
refusal  of  defendant  to  make  such  transfer,  plaintiffs,  relying  upon 
the  agreement  of  defendant  as  aforesaid,  in  good  faith  expended 
large  sums  of  money  in  an  attempt  to  interest  capital  in  the  opera- 
tion, exploration,  and  development  of  said  lode  or  lead ;  that  there- 
after, and  prior  to  the  commencement  of  the  suit,  plaintiffs  offered 
to  convey  to  said  defendant  an  undivided  one-third  interest  in  said 
lode  or  claim,  and  demanded  that  defendant  should  comply  with  the 
conditions  of  the  agreement  on  his  part,  and  convey  to  the  plaintiffs 
an  undivided  two-thirds  interest  therein,  but  that  defendant  has 
failed  and  refused  so  to  do. 

The  complaint  then  sets  forth  the  particular  description  of  the  land 
in  question  so  as  be  conveyed,  in  the  following  language :  "An  un- 
divided two-thirds  (2-3)  interest  in  and  to  a  strip  of  land  not  ex- 
ceeding 300  feet  in  width,  running  diagonally  across  the  upper  por- 
tion of  section  23,  in  Tp.  3  south,  of  R.  3  east,  in  the  county  of  Gal- 
latin, state  of  Montana,  at  the  place  on  said  section  where  a  certain 
lead  or  lode  of  corundum-bearing  rock  is  contained  and  situate,  said 
strip  of  land  to  conform  to  the  meandering  of  said  vein  or  lode  of 
corundum-bearing  rock,  together  with  the  necessary  ingress  and 
egress  to  the  same  for  the  purpose  of  mining,  milling  and  marketing 
the  ore  therefrom,  and  otherwise  prospecting  and  operating  said  lode, 
together  with  the  right  to  such  use  of  the  water  right  of  said  de- 
fendant, consisting  of  the  right  to  the  use  of  the  waters  of  said  branch 
of  Elk  creek,  in  said  county  and  state,  as  may  be  necessary  for  the 
proper  operation,  treatment,  mining,  milling,  and  concentration  of 
the  ores  of  said  lode,  extending  in  a  northeasterly  and  southwesterly 
direction  from  the  principal  point  of  discovery  and  development 
thereon  of  said  lode  to  the  limits  of  said  section." 


RAILROAD    LAND   GRANTS.  597 

The  demurrer  was  based  upon  the  grounds  that  the  complaint  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  and  that  it 
was  ambiguous,  uncertain,  and  unintelHgible  in  certain  respects  set 
forth  in  the  demurrer. 

The  only  question  necessary  to  consider  is,  does  the  complaint  state 
facts  sufficient  to  constitute  a  cause  of  action  ?  In  order  to  arrive  at 
a  correct  conclusion  as  to  the  alleged  rights  of  plaintiff  in  or  to  any 
of  the  land  in  question,  we  must  consider  and  determine  the  character 
and  legal  effect  of  the  patent  to  the  land,  under  which  defendant_  is 
alleged  to  have  acquired  ownership.  To  this  consideration  a  brief 
review  of  the  source  of  title  seems  important. 

Defendant  is  alleged  to  claim  ownership  under  a  patent  issued  by 
the  United  States  to  the  Northern  Pacific  Railway  Company.  In 
1864  Congress  passed  an  act  granting  to  the  Northern  Pacific  Rail- 
road Company  "every  alternate  section  of  land  not  mineral,  desig- 
nated by  odd  numbers,  to  the  amount  of  twenty  alternate  sections 
per  mile  on  each  side  of  the  railway  line  as  said  company  may  adopt 
through  territories  of  the  United  States,"  extending  from  Lake  Su- 
perior to  Puget  Sound.  Act  July  2,  1864,  c.  217,  13  Stat.  365.  At 
the  next  session  Congress  amended  this  grant  by  providing  "that  all 
mineral  lands  be,  and  the  same  are,  hereby  excluded  from  the  opera- 
tions of  this  act."  Res.  Jan.  30,  1865,  No.  10,  13  Stat.  567.  It  is 
apparent  from  these  provisions  of  the  grant  (which  are  all  that  are 
material  to  the  questions  herein  involved)  that  mineral  lands  did  not 
pass  by  the  grant.  The  Supreme  Court  of  the  United  States  have  al- 
ways held  that  the  grant  was,  in  prsesenti,  floating  in  its  character 
until  the  line  of  the  railroad  was  definitely  located,  when  it  attached 
to  each  alternate  section  mentioned  in  the  grant,  and  became  fixed  in 
its  character.  When  the  land  was  surveyed  by  the  government  the 
particular  sections  mentioned  in  the  grant  were  specifically  desig- 
nated, and  the  grant  then  took  effect  from  its  date.  Under  these  de- 
cisions the  railway  company  insisted  that  the  character  of  the  land, 
as  to  whether  mineral  or  not,  must  be  determined  as  of  date  of  the 
grant,  and,  if  it  was  not  then  known  to  be  mineral,  it  passed  by  the 
grant.  This  condition  seems  to  have  been  recognized  by  the  Supreme 
Court  of  the  United  States  until  it  had  for  consideration  the  case  of 
Barden  v.  N.  P.  Ry.  Co.,  154  U.  S.  288,  14  Sup.  Ct.  1030,  38  L.  Ed. 
992,  wherein  it  was  decided  that  all  mineral  land  except  iron  and  coal, 
whether  known  or  unknown,  was  excluded  from  the  grant. ^    Subse- 

^But  unlocated  mineral  land  on  the  right  of  way  has  been  held  not  to  be 
excluded  from  the  railroad  land  grant.  Wilkinson  v.  Northern  Pac.  R.  Co., 
5  Mont.  538,  6  Pac.  349.  . 

In  construing  the  statute  to  exclude  both  known  and  unknown  mmeral  lands 
from  the  grant,  Field,  J.,  for  the  court,  said  in  the  Barden  case : 

"It  seems  to  us  as  plain  as  language  can  make  it  that  the  intention  of  con- 
gress was  to  exclude  from  the  grant  actual  mineral  lands,  whether  known  or 
unknown,  and  not  merely  such  as  were  at  the  time  known  to  be  mineral. 


598  LOCATIONS    AND   OTHER    RIGHTS. 

quent  to  this  decision  Congress  passed  an  act  "to  provide  for  the 
examination  and  classification  of  certain  lands  in  the  states  of  Mon- 
tana and  Idaho."  Act  Feb.  26,  1895,  c.  136,  28  Stat.  683.  Section  7  of 
this  act  provides :  "No  patent  or  other  conveyance  or  title  shall  be  is- 
sued or  delivered  to  the  Northern  Pacific  Railroad  Company  for  any 
lands  in  such  districts  until  such  lands  shall  have  been  examined  and 
classified  as  non-mineral."  Under  the  provisions  of  this  act,  mineral 
land  commissioners  were  appointed  by  the  government  to  examine 
and  classify,  as  to  their  mineral  character,  all  lands,  under  the  afore- 
After  the  plaintiff  had  complied  with  all  the  conditions  of  the  grant,  performed 
every  duty  respecting  it,  and,  among  other  things,  that  of  definitely  fixing 
the  line  of  the  route,  its  grant  was  still  limited  to  odd  sections  which  were 
not  mineral  at  the  time  of  the  grant,  and  also  to  those  which  were  not  re- 
served, sold,  granted,  or  otherwise  appropriated,  and  were  free  from  pre- 
emption and  other  claims  or  rights  at  the  time  the  line  of  the  road  was 
definitely  fixed,  and  was  coupled  with  the  condition  that  all  mineral  lands 
were  excluded  from  its  operation,  and  that  in  lieu  thereof  a  like  quantity  of 
unoccupied  and  unappropriated  agricultural  lands,  in  odd  sections,  nearest  to 
the  line  of  the  road,  might  be  selected.     *     *     * 

"It  is  difficult  to  perceive  the  principle  upon  which  the  term  'known'  is 
sought  to  be  inserted  in  the  act  of  congress,  either  to  limit  the  extent  of  its 
grant  or  the  extent  of  its  mineral,  though  its  purpose  is  apparent.  It  is  to 
add  to  the  convenience  of  the  grantee,  and  enhance  the  value  of  its  grant. 
But  to  change  the  meaning  of  the  act  is  not  in  the  power  of  the  plaintiff, 
and  to  insert  by  construction  what  is  expressly  excluded  is,  in  terms,  pro- 
hibited. Besides  the  impossibility,  according  to  recognized  rules  of  construc- 
tion, of  incorporating  in  a  statute  a  new  term, — one  inconsistent  with  its 
express  declarations, — there  are  many  reasons  for  holding  that  the  omission 
of  the  word  'known,'  as  defining  thf  extent  of  the  mineral  lands  excluded, 
was   purposely   intended. 

"The  earnest  contention  of  the  counsel  of  the  plaintiff  arises  principally, 
we  think,  from  an  unfounded  apprehension  that  our  interpretation  will  lead 
to  uncertainty  in  the  titles  of  the  country.  If  the  exception  of  the  govern- 
ment is  not  limited  to  known  minerals,  the  title,  it  is  said,  may  be  defeated 
years  after  the  land  has  passed  into  the  hands  of  the  grantee,  and  improve- 
ments of  great  extent  and  value  have  been  made  upon  its  faith.  It  is  con- 
ceded to  be  of  the  utmost  importance  to  the  prosperity  of  the  country  that 
titles  to  land,  and  to  minerals  in  them,  shall  be  settled,  and  not  be  the 
subject  of  constant  and  ever-recurring  disputes  and  litigation,  to  the  dis- 
turbance of  individuals,  and  the  annoyance  of  the  public.  We  do  not  think 
that  any  apprehension  of  disturbance  in  titles  from  the  views  we  assert  need 
arise.  The  law  places  under  the  supervision  of  the  interior  department,  and 
its  subordinate  officers,  acting  under  its  direction,  the  control  of  all  matters 
affecting  the  disposition  of  the  public  lands  of  the  United  States,  and  the 
adjustment  of  private  claims  to  them  under  the  legislation  of  congress.  It 
can  hear  contestants,  and  decide  upon  the  respective  merits  of  their  claims. 
It  can  investigate  and  settle  the  contentions  of  all  persons  with  respect  to 
such  claims.  It  can  hear  evidence  upon,  and  determine,  the  character  of 
lands  to  which  different  parties  assert  a  right;  and  when  the  controversy 
before  it  is  fully  considered,  and  ended,  it  can  issue  to  the  rightful  claimant 
the  patent  provided  by  law,  specifying  that  the  lands  are  of  the  character 
for  which  a  patent  is  authorized.  It  can  thus  determine  whether  the  lands 
called  for  are  swamp  lands,  timber  lands,  agricultural  lands,  or  mineral 
lands,  and  so  designate  them  in  the  patent  which  it  issues.     The  act  of  con- 


RAILROAD    LAND   GRANTS.  599 

said  grant,  claimed  by  the  Northern  Pacific  Railroad  Company  in  the 
above-mentioned  states.  The  complaint  alleges  full  compliance  with 
this  act,  and  the  issue  of  patent  by  the  United  States  to  the  Northern 
Pacific  Railway  Company,  the  successor  in  interest  to  the  Northern 
Pacific  Railroad  Company,  the  grantee  named  in  the  original  grant. 

Now,  what  is  the  effect  of  this  patent?  Congress  has  provided 
for  the  disposition  of  various  classes  of  public  lands,  and  has  au- 
thorized the  officers  of  the  Land  Department  to  ascertain  the  char- 
acter of  such  land  and  issue  patent  therefor.  In  the  absence  of 
fraud,  imposition,  or  mistake,  the  determination  of  that  department 
as  to  the  character  of  land  is  conclusive.  Barden  v.  N.  P.  Ry.  Co., 
supra,  and  cases  cited.  No  fraud,  imposition,  or  mistake  has  been 
alleged,  and,  the  patent  having  been  issued,  it  is  conclusive  that  the 
land  in  question  is  nonmineral  in  its  character. 

Plaintifl!s'  alleged  rights  were  originated  by  the  discovery  and  lo- 
cation of  a  mineral  vein  within  the  limits  of  the  land  alleged  to  have 
been  patented  to  defendant's  predecessor  in  interest.  Section  2319, 
Rev.  St.  U.  S.  [U.  S.  Comp.  St.  1901,  p.  1424],  provides :  "All  valu- 
able mineral  deposits  in  mineral  lands  belonging  to  the  United  States, 
both  sui-veyed  and  unsurveyed,  are  hereby  declared  to  be  free  and 
open  to  exploration  and  purchase,  and  the  lands  in  which  they  are 
contained,  to  occupation  and  purchase."  Under  this  section,  in  order 
to  make  a  location,  surface  ground,  including  the  vein  or  lode,  must 
be  appropriated,  and  such  surface  ground  must  belong  to  the  United 
States.  State  v.  District  Court,  25  Mont.  504,  65  Pac.  1020,  and 
cases  cited.  Under  plaintiffs'  own  allegations,  none  of  the  surface 
ground  of  the  land  in  question  was  owned  by  the  United  States,  it 
having  been  patented  to  the  Northern  Pacific  Railway  Company. 
There  can  be  no  doubt,  therefore,  that  plaintiffs,  by  their  attempted 
location  of  a  mineral  claim  upon  the  land  in  question,  acquired  no 
rights  at  all.  According  to  their  own  showing,  the  "mineral  in  the 
soil"  was  the  only  thing  remaining  in  the  government.  This  court 
knows  of  no  statute  of  the  United  States  which  provides  for  the  ac- 
quirement of  "minerals  in  the  soil,"  aside  from  the  mineral  statute 
above  quoted,  which  requires  the  location  of  certain  surface  ground, 

gress  making  the  grant  to  the  plaintiff  provides  for  the  issue  of  a  patent 
to  the  grantee  for  the  land  claimed;  and  as  the  grant  excludes  mineral  lands, 
in  the  direction  for  such  patent  to  issue,  the  land  office  can  examine  into 
the  character  of  the  lands,  and  designate  it  in  its  conveyance. 

"It  is  the  established  doctrine,  expressed  in  numerous  decisions  of  this 
court,  that  wherever  congress  has  provided  for  the  disposition  of  any  por- 
tion of  the  public  lands,  of  a  particular  character,  and  authorizes  the  officers 
of  the  land  department  to  issue  a  patent  for  such  land  upon  ascertainment 
of  certain  facts,  that  department  has  jurisdiction  to  inquire  into  and  deter- 
mine as  to  the  existence  of  such  facts,  and  in  the  absence  of  fraud,  imposi- 
tion, or  mistake  its  determination  is  conclusive  against  collateral  attack." 
Barden  v.  Northern  Pac.  R.  Co.,  154  U.  S.  288,  38  L.  ed.  992,  14  Sup.  Ct. 
1030,  1034,  1038. 

On  railroad  land  grants,  see  Costigan,  Mining  Law,  71-82. 


600  LOCATIONS    AND   OTHER    RIGHTS. 

including  the  minerals  soug-ht  to  be  obtained.  Plaintiffs  do  not  claim 
to  be  the  successors  in  interest  of  the  United  States  in  and  to  the 
•'minerals  in  the  soil,"  otherwise  than  by  the  making  of  a  mining 
location  under  the  laws  of  the  United  States. 

There  is  still  another  objection  to  the  validity  of  plaintiffs'  claimed 
location.  The  surface  of  the  entire  section  No.  23  had  been  patented 
by  the  government  to  the  Northern  Pacific  Railway  Company,  and 
conveyed  to  defendant.  Under  this  conveyance  the  defendant  was 
entitled  to  the  exclusive  possession  of  -all  the  surface  ground  of  such 
section.  Any  entry  by  any  other  person  for  any  purpose,  without 
defendant's  consent,  was  a  trespass  upon  the  rights  of  the  defendant. 
It  has  been  uniformly  held  by  the  Supreme  Court  of  the  United 
States  that  a  valid  mining  claim  cannot  be  initiated  by  the  commis- 
sion of  a  trespass.  Clipper  M.  Co.  v.  Eli.  M.  Co.,  24  Sup.  Ct.  632,  48 
L.  Ed.  944,  and  cases  cited.  We  are  therefore  clearly  of  the  opinion 
that  the  pretended  location  of  a  mining  claim  by  the  plaintiffs  was 
absolutely  of  no  force  or  effect. 

But  again,  the  contract  of  which  specific  performance  is  sought  is 
without  adequate  consideration ;  the  only  thing  of  value  to  be  sur- 
rendered by  plaintiffs  is  an  alleged  interest  in  a  certain  vein.  We 
have  seen  that  they  had  no  such  interest,  and  therefore  could  not 
surrender  or  convey  the  same  or  any  part  thereof. 

But  it  is  claimed  by  plaintiffs  that  the  information  given  by  them  to 
defendant  of  the  existence  of  this  vein  in  his  land  was  sufficient  con- 
sideration. Of  what  value  would  such  information  be  to  defendant 
unless  plaintiffs  could  also  furnish  to  him  the  means  of  acquiring 
the  subject-matter  disclosed?  By  their  own  showing,  the  minerals 
contained  in  such  vein  were  reserved  by  the  United  States.  We  do 
not  consider  the  validity  of  this  alleged  reservation  by  the  govern- 
ment (which  is  extremely  doubtful:  Silver  Bow  M.  Co.  v.  Clark,  5 
Mont.  378,  5  Pac.  570),  because,  if  it  is  void,  all  "minerals  in  the 
soil"  passed  by  patent,  and  plaintiffs  show  no  interest  therein. 

Plaintiffs  also  allege  that  the  settlement  of  the  matters  in  dispute 
between  the  parties  without  litigation  was  sufficient  consideration. 
While  in  some  instances  this  might  be  sufficient  to  support  some  con- 
tracts, we  are  clearly  of  opinion  that  the  allegations  of  plaintiffs  in 
this  case  do  not  disclose  such  an  adequate  consideration  as  is  neces- 
sary to  support  a  suit  for  specific  performance.  Section  4417,  Civ. 
Code ;  Mayger  v.  Cruse,  5  Mont.  485,  6  Pac.  333 ;  Finlen  v.  Heinze, 
28  Mont.  548,  73  Pac.  123. 

Neither  do  we  believe  that  the  complaint  contains  a  sufficiently 
specific  description  of  the  property  involved  to  warrant  any  decree. 

We  advise  that  the  judgment  appealed  from  be  affirmed. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion, 
the  judgment  is  affirmed. 


RAILROAD    LAND    GRANTS.  6oi 

VAN  NESS  V.  ROONEY  et  al. 
191 1,    Supreme  Court  of  Californl\.     160  Cal.  131,  116  Pac.  392. 

Action  by  H.  J.  Van  Ness  against  John  Rooney  and  others. 
Judgment  for  plaintiff,  and  defendants  appeal.     Affirmed. 

LoRiGAN,  J.'* — This  action  was  brought  by  plaintiff  against  de- 
fendants to  quiet  his  title  to  a  quartz  mining  claim,  known  as  the 
"Five  Pines  iMine,"  located  in  Trinity  county,  and  for  an  injunction 
restraining  defendants  from  trespassing  on  or  extracting  ore  there- 
from. Plaintiff  proved  a  valid  location  of  the  mine  by  one  Edwin 
Baker,  on  August  26,  1895,  and  a  conveyance  by  said  locator  to  plain- 
tiff; that  the  claim  consisted  of  a  piece  of  land  1,500  feet  long  by 
600  feet  wide  located  partly  in  section  20  and  partly  in  section  29, 
township  35  north,  range  i  west,  M.  D.  M.,  about  half  the  surface 
ground  of  said  claim  lying  in  each  of  said  sections ;  that  the  annual 
work  and  labor  required  by  law  to  be  done  had  been  performed  on 
said  claim  each  year  after  its  location,  and  that  the  claim  embraced 
valuable  gold-bearing  ore,  and  contained  no  deposits  of  coal  or  iron. 

The  defendants  asserted  title  to  that  portion  of  the  mining  claim 
located  in  section  29  as  successors  in  interest,  under  a  patent  issued 
by  the  United  States,  to  the  Central  Pacific  Railroad  Company,  dated 
February  14,  1896.  This  patent  purported  to  convey  to  said  railroad 
company  some  200,000  acres  of  land  in  various  sections,  townships, 
and  ranges  in  California,  including  all  of  said  section  29.  The  de- 
scriptive calls  in  the  patent  are  "followed  by  the  granting  clause, 
whereby  the  United  States  grants  to  the  Central  Pacific  Railroad 
Company  "all  the  tracts  of  land  described  in  the  foregoing,  yet  ex- 
cluding and  excepting  all  mineral  lands  should  any  such  be  found 
in  the  tracts  aforesaid,  but  this  exclusion  and  exception  according 
to  the  terms  of  the  statute  shall  not  be  construed  to  include  coal  and 
iron  lands." 

Judgment  was  entered  in  favor  of  plaintiff,  declaring  him  to  be 
the  owner  and  entitled  to  the  possession  of  the  mining  ground  in 
question  against  every  one,  except  the  government  of  the  United 
States  ;  that  defendants  had  no  right  or  title  to  any  part  thereof,  and 
enjoined  them  from  trespassing  upon  the  property.  Defendants 
moved  for  a  new  trial,  which  being  denied,  this  appeal  is  taken  solely 
from  the  denial  of  said  order. 

The  judge  of  the  superior  court  of  Trinity  county,  Hon.  J,  W. 
Bartlett,  before  whom  this  cause  was  tried,  in  ordering  judgment 
for  plaintiff  filed  a  written  opinion  in  which  he  set  forth  so  clearly 
the  questions  involved  in  the  suit,  with  accurate  declarations  of  law 
bearing  on  them,  that  we  quote  from  it  extensively. 

After  referring  to  the  facts,  as  we  have  recited  them  above,  in- 

*  Parts   of  the   opinion  are   omitted. 


6o2  LOCATIONS    AND   OTHER   RIGHTS. 

eluding  the  terms  of  the  patent  to  the  railroad  company  and  the  ex- 
ceptions contained  therein,  the  opinion  of  said  superior  judge  pro- 
ceeds : 

"What,  if  any,  is  the  effect  of  the  exception  and  reservation  above 
set  forth  in  said  patent  is  determinative  of  the  issues  involved  in  this 
case.  Plaintiff's  claim  is  that  by  virtue  of  this  exception  and  reserva- 
tion no  title  passed  by  the  patent  to  that  portion  of  the  'Five  Pines 
mine'  which  lies  within  that  portion  of  said  section  29  of  township  35 
north,  range  7  west,  M.  D.  M.,  to  which  defendants  allege  title.  De- 
fendants claim  that  plaintiff  is  debarred  from  making  this  claim  by 
reason  of  the  provisions  of  the  act  of  Congress  of  March  2,  1896 
[chap.  39,  29  Stat.  42  (U.  S.  Comp.  St.  1901,  p.  1603)],  which  pro- 
hibits the  bringing  of  actions  by  the  United  States  to  annul  patents 
theretofore  erroneously  issued  under  railroad  or  wagon  road  grants, 
after  five  years  from  the  time  of  the  passage  of  said  act  of  Congress ; 
that  this  action  is  an  unauthorized  attack  upon  a  United  States  pat- 
ent, and  that  if  plaintiff  was  ever  in  a  position  to  question  the  validity 
of  the  passing  under  said  patent  of  the  title  to  said  section  29  he 
has  lost  his  rights  by  not  bringing  his  action  within  five  years  from 
the  time  the  patent  was  issued.  Defendants  also  claimed  that  the 
excepting  clause  is  inserted  in  the  patent  without  any  authority  of 
law,  and  is  void  and  of  no  effect. 

"These  questions  are  of  momentous  importance,  for  on  their  proper 
solution  depends  the  validity  of  titles  of  locators  on  much  of  the 
mineral  lands  in  the  mining  districts  of  Trinity  county  and  in  other 
of  the  mining  counties  of  the  state  of  California.     *     *     * 

[2]  "Mineral  lands  situated  within  the  limits  of  railroad  grants 
are  subject  to  location  up  to  the  time  of  the  issuance  of  the  patent, 
clearly  determined  in  the  great  case  of  Barden  v.  N.  P.  R.  R.  Com- 
pany, 154  U.  S.  288  [14  Sup.  Ct.  1030,  38  L.  Ed.  992]  by  the  Su- 
preme Court  of  the  United  States,  and  this  court  is  the  final  arbiter 
of  all  the  questions  arising  in  cases  like  the  one  before  this  court,  and 
this  decision  alone  precludes  this  court  from  finding  that  plaintiff's 
grantor,  was  not  entitled  to  this  land  when  the  patent  under  discus- 
sion was  executed  to  the  Central  Pacific  Railroad  Company. 

[3]  "The  argument  of  defendants  that  plaintiff  is  debarred  from 
the  relief  he  seeks  because  of  the  provisions  of  the  act  of  Congress  of 
March  2,  1896,  is  wholly  without  merit.  Plaintiff  is  not  seeking  in 
this  action  to  annul  or  avoid  a  patent  issued  by  the  government  of 
the  United  States.  The  effect  of  granting  the  relief  he  asks  does  not 
in  any  way  invalidate  the  patent  in  question.  It  is  an  interpretation 
of  the  instrument  that  will  be  brought  about  by  the  judgment  in  this 
action,  which  will  determine  what,  if  any,  lands  in  section  29  of 
township  35  north  of  range  7  west,  M.  D.  M.,  are  included  in  the  re- 
serving clause  of  the  patent.  It  is  safe  to  presume  that  when  the 
President  of  the  United  States  was  about  to  sign  the  patent,  if  it  had 
been  called  to  his  attention  that  there  was  on  said  section  29  a  quartz 


RAILROAD    LAND   GRANTS.  603 

claim  which  has  been  duly  located,  which  was  being  worked,  which 
had  defined  bounds,  or  could  be  identified  and  defined,  that  he  would 
have  refused  to  sign  the  patent  until  these  lands  had  been  expressly 
excepted.  But  to  except  such  lands  it  was  not  necessary  for  him  to 
know  that  an  actual  location  had  been  made.  That  could  be  an  actual 
fact,  as  in  this  instance  it  was,  without  the  knowledge  reaching  the 
land  department  or  the  President  prior  to  the  issuance  of  the  patent. 
By  virtue  of  such  location,  and  because  of  the  mining  statutes,  and 
by  reason  of  the  interpretation  made  by  the  Supreme  Court  of  the 
United  States  as  to  the  effect  of  such  location,  the  lands  embraced 
in  the  location  had  passed  into  the  possession  and  control  of  the  lo- 
cator ;  his  location  had  as  effectually  given  him  a  right  to  the  posses- 
sion of  the  located  claim,  as  if  it  had  been  granted  to  him  by  the  gov- 
ernment of  the  United  States. 

[4]  "The  moment  the  locator  discovered  a  valuable  mineral  de- 
posit on  the  lands  and  perfected  his  location  in  accordance  with  law, 
the  power  of  the  United  States  government  to  deprive  him  of  the 
exclusive  right  to  the  possession  and  enjoyment  of  the  located  claim 
was  gone ;  the  lands  had  become  known  mineral  lands,  and  they  were 
exempted  from  lands  that  could  be  granted  to  any  railroad  company. 
On  August  25,  1895,  a  lode  had  been  found  to  exist  on  the  section 
in  controversy  in  this  action,  mineral  lands  had  been  found  in  one 
of  the  tracts  mentioned  in  the  patent,  and  by  force  of  the  reserving 
clause  therein  these  lands  never  passed  from  the  government  by  rea- 
son of  the  patent. 

"The  case  of  Noyes  v.  jMantle,  127  U.  S.  348,  8  Sup.  Ct.  1132,  32 
L.  Ed.  168,  is  most  convincing  that  such  is  the  construction  that 
should  be  placed  on  the  reservation  in  the  patent.  In  this  case  the 
Supreme  Court  of  the  United  States  says :  'Where  a  location  of  a 
vein  or  lode  has  been  made  under  the  law,  and  its  boundaries  have 
been  specifically  marked  on  the  surface  so  as  to  be  readily  traced,  and 
notice  of  the  location  is  recorded  in  the  usual  books  of  record  within 
the  district,  we  think  it  may  safely  be  said  that  the  vein  or  lode  is 
known  to  exist,  although  personal  knowledge  of  the  fact  may  not  be 
possessed  by  the  applicant  for  a  patent  of  a  placer  claim.  The  in- 
formation which  the  law  requires  the  locator  to  give  to  the  public 
must  be  deemed  sufficient  to  acquaint  the  applicant  with  the  existence 
of  the  vein  or  lode.  A  copy  of  the  patent  is  not  in  the  record,  so  we 
cannot  speak  positively  as  to  its  contents ;  but  it  will  be  presumed  to 
contain  reservations  of  all  veins  or  lodes  known  to  exist  pursuant  to 
the  statute.  At  any  rate,  as  already  stated,  it  could  not  convey  prop- 
ertv  which  had  already  passed  to  others.  A  patent  of  the  United 
States  cannot,  any  more  than  a  deed  of  an  individual,  transfer  what 
the  grantor  does  not  possess.' 

[5]  "Plaintiff's  predecessor  in  interest  having  duly  located  the 
Five  Pines  mine,  before  the  issuance  of  the  patent  here  in  question, 
that  portion  of  said  mine  which  lies  within  the  west  half  of  the  north- 


604  LOCATIONS    AND   OTHER   RIGHTS. 

west  quarter  of  section  29  of  township  35  north  of  range  7  west,  M. 
D.  M.,  must  be  held  to  be  not  included  in  the  lands  conveyed  by  the 
patent' to  the  Central  Pacific  Railroad  Company  because  of  the  reser- 
vation contained  in  the  granting  clause  of  the  patent,  and  judgment 
in  this  action  should  be  in  favor  of  the  plaintifif,  as  prayed  for  in  this 
complaint." 

The  affirmance  of  this  appeal  might  be  rested  upon  the  legal  prm- 
ciples  announced  in  this  opinion  of  the  trial  judge  and  further  con- 
sideration of  the  matter  made  unnecessary,  if  it  were  not  that  some 
points  and  authorities  cited  by  appellant  here  are  to  be  noticed,  as 
well  as  some  decisions,  other  than  those  referred  to  by  the  trial  judge, 

to  be  cited.     *     *     *  ,  •  ,     , 

Certain  California  cases  are  cited  by  appellant  under  which  they 
claim  that  the  patent  to  the  railroad  company  is  conclusive  against 
the  attack  of  respondent.  These  are  particularly:  Gale  v.  Best,  78 
Cal.  235,  20  Pac.  550,  12  Am.  St.  Rep.  44;  Saunders  v.  La  Purisima, 
etc.,  Co.,  125  Cal.  159,  57  Pac.  656;  Paterson  v.  Ogden,  141  Cal.  43, 
74  Pac.  443,  99  Am.  St.  Rep.  31  ;  and  Jameson  v.  James,  155  Cal. 
275,  100  Pac.  700.  But  an  examination  of  these  cases  shows  that  the 
attack  on  the  patent  was  made  by  junior  claimants.  As  to  such 
claimants,  it  is  clear,  as  pointed  out  in  those  authorities,  that  the 
patent  to  the  land  as  agricultural  land  is  conclusive. 

But  the  plaintiff  here  is  not  a  junior  claimant.  He  had  made  a 
valid  mining  location  and  initiated  his  title  to  his  mining  claim  in  the 
quarter  section  in  question  nearly  six  months  before  the  issuance  of 
the  patent  to  the  railroad  company,  and,  as  the  law  is  that  mineral 
deposits  whose  existence  are  known  when  the  patent  is  issued  do  not 
pass  under  it,  the  patent  was  ineft'ectual  to  transfer  any  title  to  the 
appellants  as  to  the  mining  claim  of  the  respondent. 

[6,  7]  As  to  the  right  of  the  respondent  to  have  his  title  quieted 
as  against  defendants,  we  have  no  doubt.  Respondent  was  in  pos- 
session of  his  mining  claim  under  a  vahd  location  made  prior  to  the 
issuance  of  the  patent  under  which  appellants  claim,  and  was,  there- 
fore in  privity  with  the  United  States.  He  is  the  equitable  owner  of 
the  mining  claim,  and  while  the  government  holds  the  legal  title  it 
holds  it  in  trust  for  him,  to  issue  a  patent  therefor,  if  he  should  elect 
to  obtain  one  upon  his  complying  with  the  provisions  of  the  law  en- 
titling him  to  such  issuance.  Under  such  circumstances,  while  re- 
spondent's title  to  the  mining  claim  is  only  an  equitable  one,  and 
though  the  legal  title  is  in  the  government,  he  is  entitled  to  have  such 
equitable  title  quieted  against  appellants  who,  though  they  acquired 
no  title  whatever  to  the  mining  claim  of  respondent  under  the  patent 
to  the  railroad,  are  nevertheless  asserting  title  to  it  against  re- 
spondent. 

The  order  appealed  from  is  affirmed.-"' 

"See  Loney  v.  ScoU,  57  Ore.  378,  112  Pac.  172,  where  it  was  held  that 
the  plaintiffs  who  had  attempted  to  locate  placer  claims  on  land  not  subject 


STATE    SCHOOL    LAND    GRAXTS.  605 

Section  3. — State  School  Land  Grants. 

HERMOCILLA  v.  HUBBELL  et  al. 
1891.    Supreme  Court  OF  California.    89  Cal.  5,  26  Pac.  611. 

Belcher,  C. — This  action  is  ejectment  to  recover  possession  of 
the  east  half  of  the  east  half  of  the  south-west  quarter,  and  the  west 
half  of  the  west  half  of  the  south-east  quarter,  of  a  certain  sixteenth 
section  of  land  situate  in  Placer  county.  Other  portions  of  the  sec- 
tion are  described  in  the  complaint,  but,  as  no  contest  was  made  as 
to  them,  they  need  not  be  referred  to  further.  The  defendants  Hub- 
bell,  Shea,  and  California  Quartz  Mining  Company  alone  answered. 
They  denied  all  the  averments  of  the  complaint,  and  alleged  that  the 
portions  of  the  section  above  described  were  in  1850,  and  ever  since 
had  been,  and  then  were,  mineral  lands  of  the  United  States,  having 
known  valuable  mineral  deposits  therein,  consisting  of  placers  con- 
taining gold  in  paying  quantities,  and  quartz  ledges  or  deposits  of 
gold-bearing  rock  in  place,  carrying  gold  and  other  precious  metals 
in  paying  quantities ;  and  that  during  all  the  times  mentioned  the  said 
placers  and  quartz  ledges  had  been,  from  time  to  time,  in  the  actual 
possession  of  citizens  of  the  United  States,  who  were  working  and 
exploring  the  same  for  the  gold  and  precious  metals  they  contained. 
They  further  alleged  that  in  the  year  1880  two  quartz  mining  claims, 
which  are  particularly  described,  were  located  on  the  demanded 
premises  by  citizens  of  the  United  States,  and  in  conformity  to  the 
laws  thereof  and  the  local  rules,  regulations,  and  customs  of  the 
mining  district, — one  by  the  grantor  of  defendant  Shea,  and  the 
other  by  the  grantors  of  the  defendant  California  Quartz  Mining 
Company, — and  that  the  locators  and  the  said  defendants,  as  their 
successors  in  interest,  had  ever  since  held,  possessed,  and  worked 
their  respective  claims  as  mining  claims.  The  case  was  tried  by  the 
court  without  a  jury,  and  judgment  was  entered  that  the  defendants 
above  named  were  the  owners  and  entitled  to  the  possession  of  their 
respective  mining  claims  as  described,  and  as  to  them  that  the  plain- 
tiff take  nothing ;  and  that  the  plaintiff  was  the  owner  and  entitled  to 
the  possession  of  all  the  balance  of  the  land  sued  for  as  against  all  of 
the  defendants.  From  this  judgment,  so  far  as  it  was  against  her, 
and  from  an  order  denying  a  new  trial,  the  plaintiff  appeals. 

The  plaintiff  claimed  title  under  a  patent  from  the  state,  issued  to 

to  mining  location  because  withdrawn  for  "irrigation  works"  under  the  act 
of  June  17,  1902,  ch.  1093,  32  Stat.  388,  and  who  had  remained  in  possession 
and  worked  the  claims  after  the  land  was  restored  to  public  entry  were  en- 
titled to  an  injunction  against  an  action  of  ejectment  brought  by  a  grantee 
of  a  railway  company  which  got  its  patent  to  the  land  as  lieu  land  after  the 
restoration  of  the  land  to  the  public  domain  and  while  the  plaintiffs  were  in 
possession. 


6o6  LOCATIONS    AND   OTHER   RIGHTS. 

one  Banvard,  her  grantor,  in  1870;  and  the  first  question  is,  was  title 
to  this  land  vested  in  the  state  at  the  time  of  the  issuance  of  the  pat- 
ent? If  it  was,  then  the  plaintiff  was  entitled  to  recover,  and  if  not, 
we  think  the  proper  judgment  was  entered.  Whatever  title  the  state 
had  was  acquired  under  the  act  of  congress  of  March  3,  1853,  "to 
provide  for  the  survey  of  the  public  lands  in  California,  the  granting 
of  pre-emption  rights  therein,  and  for  other  purposes."  10  St.  U.  S. 
244.  By  this  act  (section  6)  it  is  declared  that  sections  16  and  36 
"shall  be,  and  hereby  are,  granted  to  the  state  for  the  purposes  of 
public  schools  in  each  township."  In  Higgins  v.  Houghton,  25  Cal. 
253,  it  was  held  by  the  supreme  court  of  this  state  that  mineral  lands 
were  not  excepted  from  the  operation  of  the  grant  of  the  sixteenth 
and  thirty-sixth  sections,  made  to  the  state  by  the  act  of  March  3, 
1853,  and  that  as  fast  as  the  townships  were  surveyed  the  state  be- 
came the  owner  of  these  sections  absolutely.  And  see  Wedekind  v. 
Craig,  56  Cal.  642.  The  rule  declared  by  this  court,  as  above  stated, 
has  not  been  approved  by  the  supreme  court  of  the  United  States. 
On  the  contrary,  it  was  held  by  that  court  in  Mining  Co.  v.  Consoli- 
dated Min.  Co.,  102  U.  S.  167,  that  the  grant  of  the  sixteenth  and 
thirty-sixth  sections  of  public  land  to  the  state  of  California  by  the 
act  of  March  3,  1853,  was  not  intended  to  cover  mineral  lands,  but 
that  such  lands  were,  by  the  settled  policy  of  the  general  government, 
excluded  from  all  grants.  That  decision  is  controlling,  and  must  be 
followed  here. 

The  question  then  remains,  were  the  disputed  premises  at  the  time 
of  the  grant  mineral  lands, — that  is,  known  to  be  valuable  for  min- 
erals? Deffeback  v.  Hawke,  115  U.  S.  404,  6  Sup.  Ct.  Rep.  95.  Up- 
on this  question  the  court  below  found  as  follows :  "That  during  all 
the  year  1850,  and  at  the  time  of  the  acquisition  of  the  said  lands  by 
the  government  of  the  United  States,  and  continuously  ever  since, 
and  on  the  loth  day  of  December,  1870,  when  the  said  patent  was  is- 
sued to  the  said  E.  M.  Banvard,  and  at  the  time  of  the  survey  of  the 
said  lands  and  the  return  thereof  by  the  said  United  States,  the  said 
east  half  of  the  east  half  of  the  south-west  quarter,  and  the  said  west 
half  of  the  west  half  of  the  south-east  quarter,  of  said  section  sixteen 
were,  and  have  been,  and  now  are,  known  public  mineral  lands  of 
the  United  States,  having  therein  known  valuable  mineral  deposits, 
consisting  of  gravel  or  placer  deposits,  and  of  quartz  rock  in  place, 
bearing  gold  in  paying  quantities,  and  ever  since  the  26th  day  of  July, 
1866,  have  been  free  and  open  to  exploration  and  purchase,  and  to 
occupation  and  purchase  as  mineral  lands  by  citizens  of  the  United 
States,  and  such  as  have  declared  their  intention  to  become  such  citi- 
zens." It  is  claimed  by  counsel  for  appellant  that  this  finding  as  to 
the  mineral  character  of  the  land  was  not  justified  by  the  evidence, 
and  hence  that  the  judgment  should  be  reversed.  We  do  not  think 
this  position  can  be  sustained.  It  is  true  the  evidence  was  somewhat 
conflicting,  but,  taken  as  a  whole,  it  was  amply  sufficient,  in  our  opin- 


MEXICAN    LAND   GRANTS.  607 

ion,  to  justify  the  finding.  It  is  further  claimed  that  the  placer  mines 
had  been  worked  out,  and  the  quartz  mines  abandoned  as  unprofit- 
able, before  1870,  and  that  there  was  no  evidence  showing-  or  tending 
to  show  a  holding  or  working  of  any  part  of  the  land  at  the  time  of 
the  issuance  of  the  patent  in  1870.  Conceding  this  to  be  so,  still  it 
cannot  aid  the  appellant.  The  grant  of  the  sixteenth  and  thirty-sixth 
sections  was  a  grant  in  prcEsenti,  and  the  only  question  is,  was  the 
land  in  question  known  to  be  mineral  in  character  at  the  time  the 
grant  was  made  ?  If  it  was,  the  title  did  not  pass  to  the  state,  but  the 
state  took  a  right  to  other  land  in  lieu  thereof,  and  not  a  right  to  this 
land  when  its  minerals  should  be  exhausted.  It  is  also  claimed  that 
the  defendants  were  not  in  a  position  to  attack  the  patent.  But,  as 
we  have  seen,  the  state  had  no  title  to  the  mineral  land,  and  passed 
none  to  its  patentee.  The  title  still  remained  in  the  general  govern- 
ment, and  under  its  laws  the  land  was  open  to  occupation  and  pur- 
chase as  mineral  land.  The  defendants  were  in  possession  of  their 
claims  under  locations  which  were  made  in  accordance  with  the  law 
and  the  local  rules  and  customs.  They  were  therefore  in  privity  with 
the  United  States,  and  had  a  clear  right  to  contest  the  patent  and  as- 
sert their  rights.  At  the  trial  the  defendants  introduced  evidence 
showing'  the  work  done  on  their  claims  after  their  location  in  1880. 
This  evidence  was  objected  to  by  the  plaintiff  as  irrelevant  and  im- 
material, and  the  objections  were  overruled,  and  exceptions  taken. 
The  evidence  was  introduced  to  show  that  the  claims  were  still  valu- 
able, and  to  overcome  the  plaintiff's  theory  that  they  were  of  no 
value.  This,  we  think,  they  had  a  right  to  do.  But,  if  the  rulings 
were  erroneous,  the  plaintiff  was  in  no  way  prejudiced  by  them,  as 
she  had  no  title.  It  follows  that  the  judgment  and  order  appealed 
from  should  be  affirmed. 

Per  Curiam — For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  and  order  appealed  from  are  affirmed.^ 


Section  4. — Mexican  Land  Grants. 

LOCKHART  v.  JOHNSON  et  al. 

1901.     Supreme  Court  of  the  United  States. 
181  U.  S.  516,  45  L.  ed.  979,  21  Sup.  Ct.  665. 

In  error  to  the  Supreme  Court  of  the  Territory  of  New  Mexico 
to  review  a  decision  affirming  a  judgment  for  defendants  in  an  ac- 
tion of  ejectment  for  mining  property.    Modified  and  affirmed. 

See  same  case  below,  9  N.  M.  344,  54  Pac.  336. 

®  On   state   school   land   grants,    see    Costigan,    Mining   Law,   64-71. 


6o8  LOCATIONS    AND   OTHER    RIGHTS. 

J\Ir.  Justice  Peckham.' — The  first  question  to  be  determined  in 
this  case  is  one  which  arises  out  of  the  facts  set  forth  in  the  stipula- 
tion between  the  parties,  and  that  is,  Did  the  lands  which  the  plain- 
tiff claims  to  recover  belong  at  the  time  of  the  location  in  1893  to  the 
United  States  within  the  meaning  of  §  2319,  Revised  Statutes,  which 
provides  that  "all  valuable  mineral  deposits  in  lands  belonging  to  the 
United  States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to 
be  free  and  open  to  exploration  and  purchase,  and  the  lands  in  which 
they  are  found  to  occupation  and  purchase,  by  citizens  of  the  United 
States,"  etc.  ? 

At  the  time  of  the  location  the  record  shows  the  parties  believed 
the  land  was  government  land,  and  not  within  the  limits  of  any  Mex- 
ican grant.  The  stipulation  shows,  however,  that  the  lands  were  in 
fact  within  the  limits  of  the  private  land  claim  known  as  the  Canada 
de  Cochiti  grant ;  that  the  grant  was  never  confirmed  by  Congress 
upon  the  report  of  the  surveyor  general,  and  that  two  different  sets 
of  claimants  under  the  grant  had  filed  their  petitions  in  the  court  of 
private  land  claims  at  Santa  Fe,  one  on  the  2d  and  the  other  on  the 
3d  day  of  March,  1893 ;  that  there  was  a  decree  of  confirmation  ren- 
dered by  the  court  on  September  29,  1894,  and  in  that  decree  of  con- 
firmation the  lands  were  not  included  within  the  boundaries  of  the 
grant  as  confirmed  by  that  decree.  An  appeal  was  taken  therefrom 
by  all  the  parties  to  the  Supreme  Court  of  the  United  States,  where 
it  was  pending  at  the  time  the  stipulation  was  entered  into,  the  ap- 
peal being  dated  March  11,  1895. 

It  therefore  appears  that  at  the  time  of  the  discovery  and  location 
of  the  lode  in  July,  1893,  the  Cochiti  grant  was  before  the  court  of 
private  land  claims  for  adjudication,  and  the  question  is  whether  by 
reason  of  that  fact  these  lands  were  reserved  from  entry  and  were 
not  subject  to  the  mineral  laws  of  the  United  States  at  that  time.  It 
will  be  noticed  that  before  the  trial  of  this  case  the  validity  and  ex- 
tent of  the  Cochiti  grant  had  been  decided  by  the  court  of  private 
land  claims,  and  this  land  was  thereby  excluded  from  the  limits  of 
that  grant.  We  know  by  our  own  records  that  the  decree  of  the 
court  of  private  land  claims  was  affirmed  in  this  court,  in  substance, 
in  Whitney  v.  United  States,  decided  in  May,  1897,  167  U.  S.  529,  42 
L.  ed.  263,  17  Sup.  Ct.  Rep.  857.  The  contention  on  the  part  of  the 
plaintiff  in  error  is  that  while  the  Cochiti  claim  was  before  the  court 
of  private  land  claims,  and  thereafter  until  its  final  determination  by 
this  court,  no  land  within  its  claimed  limits  could  be  entered  upon 
under^  the  mining  laws  of  the  United  States,  and  if  any  such  entry 
w^ere  in  fact  made  it  was  illegal  and  void,  and  gave  no  rights  under 
the  mining  laws  to  the  parties  so  entering,  and  consequently  plain- 
tiff's possession  was  not  subject  to  forfeiture  under  those  laws.  In 
other  words,  that  while  the  claim  was  sub  judice  all  lands  within  its 

'  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


MEXICAN    LAND   GRANTS.  609 

limits  as  claimed  were  withdrawn  and  reserved  from  entry  under  any 
of  the  laws  pertaining  to  the  sale  or  other  disposition  of  the  public 
lands  of  the  United  States,  and  that  the  plaintiff,  being  in  possession, 
had  the  right  to  retain  it  as  against  defendants  who  entered  without 
right  or  title,  and  were  therefore  mere  trespassers. 

Public  lands  belonging  to  the  United  States,  for  whose  sale  or 
other  disposition  Congress  has  made  provision  by  its  general  laws, 
are  to  be  regarded  as  legally  open  for  entry  and  sale  under  such  laws, 
unless  some  particular  lands  have  been  withdrawn  from  sale  by  con- 
gressional authority  or  by  an  executive  withdrawal  under  such  au- 
thority, either  expressed  or  implied.  IVolsey  v.  Chapman,  loi  U.  S. 
755,  769,  25  L.  ed.  915,  920;  Hewitt  v.  Schulta,  i8o  U.  S.  139,  45  L. 
ed.  — ,  21  Sup.  Ct.  Rep.  309.  We  must,  therefore,  refer  to  the  action 
of  Congress  to  discover  whether  lands  which  in  fact  were  public 
lands  of  the  United  States  were  reserved  from  sale  or  other  disposi- 
tion under  its  public  laws  because  they  were  included  within  the 
claimed  limits  but  in  fact  were  not  within  the  actual  limits  of  a  grant 
by  the  Spanish  or  Mexican  authorities  before  the  cession  of  the  ter- 
ritory by  Mexico  to  the  United  States  by  the  treaty  of  Guadalupe 
Hidalgo  of  February  2,  1848.  9  Stat,  at  L.  922.  The  8th  and  9th 
articles  of  that  treaty  provide  that  the  property  of  every  kind  belong- 
ing to  Mexicans  in  the  ceded  territory  should  be  respected  by  the 
government  of  the  United  States  and  their  title  recognized. 

In  1854  (10  Stat,  at  L.  308,  chap.  103)  Congress  established  the 
office  of  surveyor  general  of  the  territory  of  New  Mexico,  and  in 
the  8th  section  of  that  statute  it  was  made  the  duty  of  that  officer, 
under  instructions  from  the  Secretary  of  the  Interior,  to  ascertain 
the  origin,  nature,  character,  and  extent  of  all  claims  to  lands  under 
the  laws,  usages,  and  customs  of  Spain  and  Mexico.  He  was  to 
make  a  full  report  of  all  such  claims  as  originated  before  the  cession 
of  the  territory  to  the  United  States  by  the  treaty  above  mentioned, 
with  his  decision  as  to  the  vahdity  or  invalidity  of  each.  This  report 
was  to  be  laid  before  Congress  for  such  action  thereon  as  it  might 
deem  just  and  proper,  "and  until  the  final  action  of  Congress  on  such 
claims,  all  lands  covered  thereby  shall  be  reserved  from  sale  or  other 
disposal  by  the  government,  and  shall  not  be  subject  to  the  donations 
granted  by  the  previous  provisions  of  this  act." 

The  Cochiti  grant  came  before  the  surveyor  general  pursuant  to 
the  provisions  of  the  act  of  1854,  and  therefore  by  the  terms  of  that 
portion  of  §  8,  just  quoted,  the  lands  were  reserved  from  sale  or 
other  disposal  by  the  government  until  final  action  by  Congress 
thereon.  Up  to  Jvlarch  3,  1891,  Congress  had  taken  no  action  in  re- 
gard to  this  grant  and  on  that  day  it  passed  the  act  establishing  the 
court  of  private  land  claims  (26  Stat,  at  L.  854,  chap.  539),  and  by 
its  15th  section  Congress  in  terms  repealed  the  8th  section  of  the  act 
of  1854,  "and  all  acts  amendatory  or  in  extension  thereof,  or  supple- 
mentary thereto,  and  all  acts  or  parts  of  acts  inconsistent  with  the 

39 — Mining  Law 


6lO  LOCATIONS    AND    OTHER    RIGHTS. 

provisions  of  this  act."  By  this  repeal,  lands  which  were  in  fact  pub- 
lic lands  belonging  to  the  United  States,  although  within  the  claimed 
limits  of  a  Mexican  grant,  became  open  to  entry  and  sale  under  the 
laws  of  the  United  States,  unless,  as  is  the  contention  of  plaintiff, 
such  lands  were  reserved  from  entry  and  sale  or  other  disposition 
by  the  United  States,  by  reason  of  the  provisions  of  the  treaty  with 
Mexico.  We  see  nothing  in  the  terms  of  that  treaty,  either  in  the 
8th  or  9th  article,  that  could  be  construed  as  a  withdrawal  of  lands 
which  in  fact  were  the  public  lands  of  the  United  States,  although 
contained  within  the  claimed  limits  of  some  Mexican  grant  made 
prior  to  the  cession  to  the  United  States.  The  mere  fact  that  lands 
were  claimed  under  a  Mexican  grant,  vvhen  such  grant  did  not  in 
truth  cover  them,  would  not  by  virtue  of  any  language  used  in  the 
treaty  operate  to  reserve  such  lands  from  entry  and  sale.    *    *    * 

As  we  have  already  stated,  there  are  no  words  in  the  treaty  with 
IMexico  expressly  withdrawing  from  sale  all  lands  within  the  claimed 
limits  of  a  Mexican  grant,  and  we  do  not  think  there  is  any  lan- 
guage in  the  treaty  which  implies  a  reservation  of  that  kind.  What- 
ever reservation  there  is  must  be  looked  for  in  the  statutes  of  the 
United  States,  and  we  are  of  opinion  that  there  is  no  such  reservation 
and  has  been  none  since  the  repeal  of  the  8th  section  of  the  act  of 
1854.     -     *     =:= 

Mineral  lands  are  not  supposed  to  have  been  granted  under  ordi- 
nary Mexican  grants  of  lands,  and  the  act  of  1891  provides  that 
minerals  do  not  pass  by  such  grants,  unless  the  grant  claimed  to 
effect  the  donation  or  sale  of  such  mines  or  minerals  to  the  grantee, 
or  unless  such  grantee  became  otherwise  entitled  thereto  in  law  or 
in  equity ;  the  mines  and  minerals  remaining  the  property  of  the 
United  States,  with  the  right  of  working  the  same,  but  no  mine 
was  to  be  worked  or  any  property  confirmed  under  the  act  of  1891 
without  the  consent  of  the  owner  of  such  property,  until  specially 
authorized  thereto  by  an  act  of  Congress  thereafter  to  be  passed. 
Section  13,  subd.  3,  act  of  189 1.  This  provision  makes  it  still  plainer 
that,  so  far  as  regards  mineral  lands,  there  was  no  intention  after 
the  passage  of  the  act  of  1891  that  they  should  be  reserved  by  a 
mere  claim  in  a  Mexican  grant  of  ordinary  land. 

Nor  does  the  claim  that  the  Cochiti  grant  was  sub  jndice  at  the 
time  of  the  location  of  these  lands  aft'ect  their  status  as  public  lands 
belonging  to  the  United  States.  They  were  not.  in  fact,  within  the 
limits  of  the  grant. ^     *     *     * 

Nor  does  the  case  of  Newhall  v.  Sanger,  92  U.  S.  761,  23  L.  ed. 
769,  apply.  In  that  case  it  v/as  held  that  lands  within  the  boundaries 
of  an  alleged  Mexican  or  Spanish  grant  which  was  siib  jiidice  at 
the  time  the  Secretary  of  the  Interior  ordered  a  withdrawal  of  lands 
along  the  route  of  the  railroad,  were  not  embraced  in  the  congres- 

*  On  Mexican  land  grants,  see  Costigan,   Mining  Law,  63-64. 


MEXICAN    LAND   GRANTS.  6ll 

sional  grant  to  the  company.  The  decision  went  upon  the  ground 
that  the  legislation  of  Congress  had  been  so  shaped  that  no  title 
could  be  initiated  under  the  laws  of  the  United  States  to  lands  cov- 
ered by  a  Spanish  or  Mexican  claim  until  it  was  barred  by  lapse 
of  time  or  rejected.  The  act  of  March  3,  1851  (9  Stat,  at  L.  631, 
633,  chap.  41,  §  13),  which  provides  for  the  presentation  of  claims 
under  Mexican  grants  in  California  to  the  commission  established 
by  the  act,  was  referred  to  by  the  court,  and  it  was  held  that  by 
reason  of  its  provisions  the  lands  were  not  public  lands  under  the 
laws  of  the  United  States  until  the  claims  thereto  had  been  either 
barred  by  lapse  of  time  or  rejected.  The  6th  section  of  the  act  of 
1853,  March  3  (10  Stat,  at  L.  244,  246,  chap.  145),  was  also  referred 
to  as  expressly  excepting  all  lands  claimed  under  any  foreign  grant 
or  title.  There  was  no  such  legislation  existing  in  regard  to  New 
Mexico  at  the  time  of  the  location  of  this  mining  claim,  July,  1893. 
The  lands  were  in  fact,  and  have  been  since  their  cession  to  this 
country,  public  lands  of  the  United  States,  although  during  the 
period  between  the  passage  of  the  act  of  1854  and  that  of  1891  they 
were  not  open  for  sale  or  other  disposition  while  the  claims  to  such 
lands  were  undetermined. 

Being  public  land  and  since  1891  open  to  location  under  the 
mining  laws  of  the  United  States,  it  is  further  contended  on  the 
part  of  defendants  that  the  location  of  the  claim  made  by  Pilkey  on 
July  10,  1893,  in  behalf  of  himself  and  his  two  partners,  Lockhart 
the  plaintiff  herein  and  Johnston,  became  forfeited  by  reason  of 
noncompliance  with  the  mining  statutes  of  the  United  States  and 
also  the  territory  of  New  Mexico,  and  that  while  such  failure  to 
comply  with  the  statutes  continued,  peaceable  possession  of  the  land 
was  taken  and  a  relocation  made  by  the  defendants,  and  whatever 
rights  the  plaintiff  ever  had  under  the  first  location  were  thereby 
cut  off.     *     *     * 

It  is  undisputed  that  the  requisite  amount  of  work  was  not  done 
by  the  first  locator,  nor  is  there  any  dispute  that  he  left  the  mine, 
certainly  early  in  October,  1893,  and  that  there  was  no  one  in  pos- 
session of  the  land  on  the  23d  of  October,  1893,  when  the  above- 
named  defendants  entered  upon  the  land,  peaceably  took  possession 
thereof  and  made  their  location,  and  that  in  such  location  Pilkey 
[plaintiff's  partner]  did  not  join,  and  his  name  was  absent  from 
the  notice,  and  he  was  not  present  when  possession  was  taken  by 
the  other  defendants.     *     *     * 

In  the  courts  of  the  United  States  in  an  action  of  ejectment  the 
strict  legal  title  must  prevail,  and  if  the  plaintiff  have  only  equities 
they  must  be  presented  and  considered  on  the  equity  side  of  the 
court.  Foster  v.  Mora,  98  U.  S.  425,  428,  25  L.  ed.  191,  192;  John- 
son V.  Christian,  128  U.  S.  374,  382,  32  L.  ed.  412,  414,  9  Sup.  Ct. 
Rep.  87.  The  law  of  New  Mexico  is  to  the  same  effect.  N.  M. 
Comp.  Laws,  §  3160,  and  following  sections. 


6l2  LOCATIONS    AND   OTHER    RIGHTS. 

Whatever  the  rights  of  the  plaintiff  may  be  (and  as  to  what  they 
are  we  express  no  opinion),  it  is  clear  that  on  this  record  he  cannot 
maintain  an  action  of  ejectment.  If  he  have  rights  as  a  copartner 
or  cotenant  with  Pilkey,  and  he  claims  that  the  acts  of  the  latter 
inure  to  his  benefit  in  any  way,  his  rights  under  such  circumstances 
can  be  enforced  in  equity.  Turner  v.  Sawyer,  150  U.  S.  578,  586, 
22  L.  ed.  1189,  1 191,  14  Sup.  Ct.  Rep.  192. 

In  relation  to  mining,  it  has  been  held  that  the  remedy  in  the  case 
of  a  claim  in  the  nature  of  that  v.hich  the  plaintiff  herein  sets  up, 
is  against  the  copartner  or  cotenant,  by  an  action  for  a  breach  of  his 
contract  or  to  establish  and  enforce  a  trust  in  the  claim  as  relocated 
against  the  parties  relocating.  Saunders  v.  Mackey,  5  Mont.  523,  6 
Pac.  361  ;  Doherty  v.  Morris,  11  Colo.  12,  16  Pac.  911. 

In  this  case  it  will  be  seen  that  the  relocation  on  behalf  of  some 
of  the  defendants  did  not  contain  Pilkey's  name,  and  hence  he  never 
had  any  legal  title  under  that  location.  He  denies  that  he  had  any 
interest  in  the  mine  under  the  relocation,  and  asserts  that  it  was  not 
made  in  his  interest  or  for  his  benefit.  Although  the  plaintiff  has  no 
right  to  maintain  this  action,  yet  he  ought  not  to  be  embarrassed  by 
a  judgment  here  from  pursuing  any  other  remedy  against  the  de- 
fendants or  either  of  them  that  he  may  be  advised ;  and  in  order  to 
avoid  any  complication  of  that  nature  which  possibly  might  result 
from  an  absolute  affirmance  of  the  judgment  of  the  supreme  court 
of  the  territory,  we  modify  the  terms  of  that  judgment  by  provid- 
ing that  it  is  entered  without  prejudice  to  the  enforcement  by  other 
remedies,  of  the  rights,  if  any,  which  the  plaintiff  may  have  against 
the  parties  defendant  or  either  of  them,  and  as  so  modified,  such 
judgment  is  affirmed.^ 


Section  5. — Homestead  Entries. 

JAMESON  ET  AL.  V.  JAMES  et  al. 
1909.     Supreme  Court  of  California.     155  Cal.  275,  100  Pac.  700. 

Action  by  J.  W.  Jameson  and  another  against  Mary  J.  James  and 
others.  From  a  judgment  dismissing  the  action,  plaintiffs  appeal. 
Affirmed. 

Sloss,  J. — The  demurrer  of  the  defendant  John  P.  Cuddeback  to 
plaintiffs'  amended  complaint  having  been  sustained,  and  plaintiffs 
having  failed  to  further  amend  within  the  time  allowed  by  the  court, 
judgment  of  dismissal  was  entered.  The  plaintiffs  appeal  from  the 
judgment. 

'A  trust  was  established  in  Lockhart  v.  Leeds,  195  U.  S.  427,  49  L.  ed. 
263,  25  Sup.  Ct.  76. 


HOMESTEAD   ENTRIES.  613 

The   amended   complaint   alleges   that   on   March   31^   1899,   the 
plaintiffs  made  a  mineral  location  of  40  acres  of  land  in  Kern  county. 
The  land  contained  limestone  in  large  quantities,  and  was  far  more 
valuable  for  said  limestone  than  for  any  other  purpose.    Immedi- 
ately after  said  location  the  plaintiffs  entered  into  possession  of  the 
claim,  and  did,  in  each  of  the  years  1900  and  1901,  perform  labor 
thereon    and    expend    money    in    the    improvement    thereof,    to    an 
amount  in  excess  of  the  sum  required  by  law.    Plaintiffs  entered 
upon  said  claim  in  the  year   1902  for  the  purpose  of  performing 
the  labor  and  making  the  improvements  required  by  law,  but  the 
defendants  forbade  a"nd  prevented  said  plaintiff's  from  performing 
any  labor  or  making  any  improvements  upon  the  property.    Prior 
to  May  30,  1900,  the  defendant  Mary  J.  James  had  made  an  appli- 
cation to  the  United  States  to  enter  a  quarter  section  of  land  in- 
cluding the  plaintiffs'  location,  and  on  April   13,   1900,  she  made 
application  to  the  register  and  receiver  of  the  United  States  Land 
Office  at  Independence  to  make  final  proof  and  payment  for  said 
land  and  to  procure  a  patent  therefor.    Notice  of  the  applicant's 
intention  to  make  final  proof  and  of  the  time  when  proof  would 
be  filed  in  support  of  her  homestead  entry  was  published  by  the 
register  in  a  paper  published  at  Kern  City,  more  than  50  miles  dis- 
tant from  the  land ;  there  being  at  the  time  a  newspaper  published 
at  Mojave,  Kern  county,  within   17  miles  of  the  place  where  the 
land  was  situated.     Plaintiffs  had  no  notice  of  the  application  of 
Mary  J.  James  to  enter  the  land  or  to  make  final  proof  until  after 
hearing  had  been  had  and  patent   issued.    It  is  alleged  that  said 
Mary  J.   James  appeared   and   made  proof  under  her  homestead 
entry,  and  that  patent  was  issued  to  her  by  the  United  States  of 
date  October  23,  1901.   At  the  time  that  said  proof  was  made,  Mary 
J.  James  knew  that  the  land  contained  limestone  in  large  quantities, 
that  said  land  was  more  valuable  for  the  limestone  than  for  any  other 
purpose,  that  said  land  was  claimed  by  plaintiffs  under  their  location, 
and  that  limestone  had  been  developed  thereon  under  said  claim.  Not- 
withstanding these  facts  said  Mary  J.  James,  through  herself  and 
her  witnesses,  misrepresented  to  the  officers  of  the  land  department 
the  true  character  and  condition  of  the  land  and  fraudulently  con- 
cealed the  fact  that  said  land  was  valuable  for  limestone  and  the 
fact  that  a  mining  location  had  been  made  on  said  land.   These  mis- 
representations and  concealments  were  fraudulently  made  for  the 
purpose  of  obtaining  the  title  to  said  land  and  a  patent  therefor  as 
agricultural  land,  under  the  homestead  laws  of  the  United  States. 
Plaintiffs  allege  that  when  Mary  J.  James  made  her  original  appli- 
cation and  entry  many  years  before  the  final  proof,  she  was  not  re- 
siding on  the  premises,  nor  did  she  ever  reside  thereon,  erect  any 
improvements  thereon,  except  a  cabin  of  the  value  of  $25,  or  culti- 
vate or  improve  the  land.    At  the  time  of  making  her  final  proof, 
however,  she  testified  and  represented  to  the  register  and  receiver 


6l4  LOCATIONS    AND   OTHER    RIGHTS. 

that  she  had  resided  upon  the  land  and  cuUivated  and  improved  the 
same  as  by  the  homestead  laws  required,  and  the  officers  of  the  land 
department  believed  and  acted  upon  her  testimony  and  representa- 
tions, and  the  patent  was  issued  upon  the  faith  of  said  representa- 
tions. It  is  further  averred  that  the  homestead  entry  was  not  made 
by  Mary  J.  James  for  her  own  benefit,  but  for  the  benefit  of  John 
W.  Payne,  to  whom  she  conveyed  on  the  day  following-  the  making 
of  final  proof.  The  complaint  sets  forth  various  conveyances  by 
Payne  and  by  his  grantees  (all  of  whom  are  named  as  defendants), 
but  alleges  that  every  defendant  accepting  a  conveyance  from  Mary 
J.  James  or  her  successors  took  with  knowledge  of  the  fraud  perpe- 
trated by  her.  The  prayer  of  the  complaint  is  that  the  patent  be 
canceled,  and  that  it  be  adjudged  and  decreed  that  the  defendants 
have  no  right,  title,  or  interest  in  the  land  located  by  plaintififs.  The 
demurrer  is  based  upon  various  grounds,  but  we  shall  consider  only 
the  specification  that  the  facts  alleged  do  not  constitute  a  cause  of 
action. 

Under  the  showing  made  by  the  complaint,  the  defendant  Mary 
J.  James  did  not  bring  herself  within  the  provisions  of  the  home- 
stead law  and  was  not,  in  reality,  entitled  to  a  patent.  By  reason  of 
the  mineral  character  of  the  land,  it  was  not  open  to  entry  (Rev. 
St.  U.  S.  §  2302  [U.  S.  Comp.  St.  1901,  p.  1410]),  and  the  condi- 
tions of  the  statutes  regarding  residence,  cultivation,  and  entry  for 
the  benefit  of  the  claimant  (Rev.  St.  U.  S.  §§  2289-2291  [U.  S. 
Comp.  St.  1901,  pp.  1 388-1 394] )  had  not  been  complied  with.  These 
facts,  if  brought  to  the  attention  of  the  proper  officers  in  the  proper 
way,  would  have  afforded  good  ground  for  denying  her  applica- 
tion ;  but  under  the  legislation  providing  for  the  grant  by  the  gov- 
ernment of  its  public  lands,  the  land  department  has  been  constituted 
a  special  tribunal,  "vested  with  judicial  power  to  determine  the 
claims  of  all  parties  to  the  public  lands  wdiich  it  is  authorized  to  dis- 
pose of,  and  with  power  to  execute  its  judgments  by  conveyances  to 
the  parties  entitled  to  them."  King  v.  McAndrews,  iii  Fed.  860, 
50  C.  C.  A.  29.  If  the  department  has  jurisdiction — that  is,  if  the 
land  belongs  to  the  United  States — and  provision  has  been  made 
by  law  for  its  sale,  the  issuance  of  a  patent  is  an  adjudication  that 
the  grantee  of  the  government  has  performed  the  acts  necessary  to 
entitle  him  to  receive  the  patent ;  and,  where  the  power  of  the  land 
department  depends  upon  its  finding  that  the  land  is  of  a  certain 
character,  the  issuance  of  the  patent  is  an  adjudication  that  the  land 
is  of  the  character  required.  Steel  v.  St.  Louis  Smelting  Co.,  106  U. 
S.  447,  I  Sup.  Ct.  389,  2^  L.  Ed.  226;  Johnson  v.  Towsley,  13  Wall. 
72,  20  L.  Ed.  485  ;  Gale  v.  Best,  78  Cal.  235,  20  Pac.  550,  12  Am.  St. 
Rep.  44.  These  adjudications  in  favor  of  the  patentee  have  the  same 
force  as  any  adjudication  by  a  tribunal  having  jurisdiction.  They 
are  binding  as  against  collateral  attack  (see  cases  above  cited),  but 
equity  may  give  relief  against  the  enforcement  of  rights  claimed 


HOMESTEAD   ENTRIES.  615 

under  a  patent  fraudulently  obtained.  Proceedings  based  upon  fraud 
in  procuring  the  issuance  of  a  patent  have  been  of  two  classes.  The 
bill  may,  while  recognizing  the  validity  of  a  patent  as  a  conveyance 
of  the  legal  title,  seek  to  have  the  patentee  declared  a  trustee  of 
such  title  for  the  benefit  of  the  complainant,  or  there  may  be  a  suit 
in  which  the  relief  sought  is  a  cancellation  of  the  patent  itself. 

In  the  case  at  bar  the  plaintiffs  do  not  seek  to  have  the  defend- 
ants held  as  trustees  of  the  legal  title  conveyed  by  the  patent.  "The 
purpose  of  the  suit,"  as  the  appellants  themselves  declare  in  their 
brief,  is  "to  cancel  the  patent  *  *  *  and  for  a  judgment  that 
the  defendants  have  no  title  under  or  through  the  patent  which  was 
issued" ;  and,  on  the  facts  alleged,  it  would  seem  clear  that  there  is 
no  foundation  for  a  decree  declaring  that  the  title  passing  to  the 
patentee  is  held  by  her  and  her  grantees  in  trust  for  the  plaintiffs. 
Such  relief  may  be  granted  only  where  the  fraud  complained  of 
operated  to  prevent  the  complainant  from  establishing,  in  the  pro- 
ceedings before  the  officers  of  the  land  department,  his  own  right  to 
a  patent.  Bohall  v.  Dilla,  114  U.  S.  47,  5  Sup.  Ct.  782,  29  L.  Ed. 
61  ;  Sparks  v.  Pierce,  115  U.  S.  408,  6  Sup.  Ct.  102,  29  L.  Ed  428; 
Lee  V.  Johnson,  116  U.  S.  48,  6  Sup.  Ct.  249,  29  L.  Ed.  570;  Carter 
V.  Thomson  (C.  C.)  65  Fed.  329;  Plummer  v.  Brown,  70  Cal.  544, 
12  Pac.  464;  Buckley  v.  Howe,  86  Cal.  596,  25  Pac.  132;  Gage  v. 
Gunther,  136  Cal.  338.  68  Pac.  710,  89  Am.  St.  Rep.  141.  It  is  not 
claimed  by  appellants  that  they,  to  quote  the  language  of  this  court 
in  Plummer  v.  Brown,  supra,  occupied  "such  a  status  as  entitled 
them  to  control  the  legal  title."  They  had  never  performed  the  acts 
necessary  to  vest  in  them  the  right  to  a  patent.  Furthermore,  the 
original  homestead  entry  of  Mrs.  James  must  have  been  made  at 
least  five  years  before  the  final  proof  (Rev.  St.  U.  S.  §  2291)  and 
therefore  antedated  the  location  upon  which  plaintiffs  rely.  So  long 
as  the  homestead  entry,  valid  on  its  face,  remained  uncontested 
and  uncanceled,  the  land  was  withdrawn  from  the  public  domain 
and  could  not  be  granted  by  the  United  States  to  a  subsequent 
claimant.  Witherspoon  v.  Duncan,  4  Wall.  210,  18  L.  Ed.  339; 
Hastings,  etc.,  R.  R.  Co.  v.  Whitney,  132  U.  S.  357,  10  Sup.  Ct. 
112,  33  L.  Ed.  363;  Hodges  v.  Colcord,  193  U.  S.  192,  24  Sup.  Ct. 
433,  48  L.  Ed.  677;  Thompson  v.  Basler,  148  Cal.  646,  84  Pac.  161, 
113  Am.  St.  Rep.  321. 

The  plaintiffs  then,  not  being  themselves  entitled  to  acquire  title 
to  the  land,  ask  that  the  patent  conveying  it  to  defendant  James 
be  canceled.  That  a  patent  obtained  by  fraud  may  be  so  canceled 
is  well  settled;  but,  inasmuch  as  the  party  injured  by  the  fraud  is 
the  government,  whose  title  has  been  improperly  obtained,  the  action 
to  annul  the  patent  can  be  maintained  by  the  United  States  alone.  A 
complainant  in  the  position  of  these  plaintiffs,  must,  as  is  said  in 
Steel  V.  St.  Louis  Smelting  Co.,  supra,  "apply  to  the  officers  of  the 
government  to  take  steps  in  its  name  to  vacate  the  patent  or  limit 


6l6  LOCATIONS    AND   OTHER    RIGHTS. 

its  operation.  *  *  *  This  can  be  accomplished  only  by  regular 
judicial  proceedings  taken  in  the  name  of  the  government  for  that 
special  purpose."  See,  also,  Lee  v.  Johnson,  supra ;  In  re  Emblen, 
i6i  U.  S.  52,  16  Sup.  Ct.  487,  40  L.  Ed.  613;  Emblen  v.  Lincoln 
Land  Co.,  184  U.  S.  660,  22  Sup.  Ct.  523,  46  L.  Ed.  736;  Carter  v. 
Thomson  (C.  C.)  65  Fed.  329. 

For  these  reasons  the  amended  complaint  failed  to  show  a  case 
entitling  the  plaintiffs  to  any  relief  whatever. 

The  judgment  is  affirmed.^ ° 


Section  6. — Town  Sites. 

FEDERAL  STATUTE. 

That  town-site  entries  may  be  made  by  incorporated  towns  and  cities  on 
the  mineral  lands  of  the  United  States,  but  no  title  shall  be  acquired  by  such 
towns  or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or  lead,  or  to 
any  valid  mining  claim  or  possession  held  under  existing  law.  When  mineral 
veins  are  possessed  within  the  limits  of  an  incorporated  town  or  city,  and 
such  possession  is  recognized  by  local  authority  or  by  the  laws  of  the  United 
States,  the  title  to  town  lots  shall  be  subject  to  such  recognized  possession 
and  the  necessary  use  thereof  and  when  entry  has  been  made  or  patent  issued 
for  such  town  sites  to  such  incorporated  town  or  city,  the  possessor  of  such 
mineral  vein  may  enter  and  receive  patent  for  such  mineral  vein,  and  the 
surface  ground  appertaining  thereto  :  provided,  that  no  entry  shall  be  made 
by  such  mineral  vein  claimant  for  surface  ground  where  the  owner  or  occupier 
of  the  surface  ground  shall  have  had  possession  of  the  same  before  the  in- 
ception of  the  title  of  the  mineral  vein  applicant. — Act  March  3,  1891,  ch. 
561,  §  16,  26  Stat.  L.  1101. 


BONNER  ET  AL.  V.  MEIKLE  et  al. 
1897.     Circuit  Court,  D.  Nevada.     82  Fed.  697. 

Hawley,  District  Judge  (orally)." — This  suit  was  brought  in  the 
state  court  by  complainant  Bonner  on  behalf  of  himself  and  for  the 
benefit  of  numerous  other  persons  upon  a  protest  (adverse)  made  by 
complainants  to  an  application  made  by  defendants  for  a  patent  to 
the  Naid  Queen  mining  location  at  De  Lamar,  Lincoln  county,  Nev., 
and  upon  the  petition  of  one  of  the  defendants  was  removed  to  this 
court  upon  the  ground  of  prejudice  and  local  influence.  Bonner  v. 
Meikle,  -j"]  Fed.  485.     *     *     * 

The  cause  was  tried  before  the  court,  a  stipulation  having  been 
filed  waiving  a  jury.    The  ground  in  controversy  is  situate  upon  the 

"On  homestead  entries,  see  Costigan,  Mining  Law,  83-87. 
"  Parts  of  the  opinion  are  omitted. 


TOWN    SITES. 


617 


nnsurveyed  public  lands  of  the  United  States.  The  complainants 
are  the  owners  of,  and  in  possession  of,  certain  town  lots,  and  the 
buildings  erected  thereon,  in  the  town  of  De  Lamar,  situate  within 
the  surface  limits  of  the  location  of  the  Naid  Queen  claim.  They 
have  expended  over  $30,000  in  the  construction  of  buildings  and 
making  improvements  on  their  land.  The  notice  of  the  mining  loca- 
tion was  posted  on  the  ground  prior  to  the  entry  of  complainants 
upon  the  land.  At  the  time  the  notice  was  posted,  no  discovery  had 
been  made  of  any  mineral-bearing  lode  or  vein  within  the  limits  of 
the  location.  Section  2320,  Rev.  St.,  provides  that  "no  location  of  a 
mining  claim  shall  be  made  until  the  discovery  of  the  vein  or  lode 
within  the  limits  of  the  claim  located."  The  contention  of  complain- 
ants is  that  no  such  discovery  has  ever  been  made,  but,  in  any  event, 
that  no  such  discovery  was  made  until  long  after  the  rights  of  com- 
plainants had  been  acquired.  In  Enterprise  Min.  Co.  v.  Rico-Aspen 
Alin.  Co.,  167  U.  S.  108,  112,  17  Sup.  Ct.  762,  763,  the  court  said: 

"In  order  to  make  a  location,  there  must  be  a  discovery;  at  least  that  is  the 
general  rule  laid  down  in  the  statute.  *  *  *  The  discovery  in  the  tunnel  is 
like  a  discovery  on  the  surface.  Until  one  is  made,  there  is  no  right  to  locate 
a  claim  in  respect  to  the  vein,  and  the  time  to  determine  where  and  how  it 
shall  be  located  arises  only  upon  the  discovery,  whether  such  discovery  be 
made  on  the  surface  or  in  the  tunnel." 

This  suit  involves  a  question  of  fact.  If  a  mineral  lode  or  vein 
was  discovered  within  the  limits  of  the  Naid  Queen  surface  location, 
running  in  a  parallel  direction  with  the  side  lines  of  the  location, 
prior  to  the  entry  of  complainants  upon  the  town  lots,  the  defendants 
are  entitled  to  a  patent.  Was  such  a  discovery  made  prior  to  that 
time?  A  preliminary  objection  was  urged  by  defendants'  counsel  to 
any  consideration  of  the  merits  of  this  case  upon  the  ground  that 
complainants  have  no  standing  in  court ;  that  they  have  not  estab- 
lished any  right  to  the  premises  in  controversy ;  and  are  not,  there- 
fore, entitled  to  protest  against  the  application  of  defendants  for  a 
patent  to  the  Naid  Queen  mining  location,  because  there  had  been 
no  action  taken  by  the  citizens  of  the  town  of  De  Lamar  to  obtain 
title  from  the  United  States  to  the  town  site.  To  quote  from  the  ar- 
gument of  counsel :  The  testimony  "does  not  show  that  the  public 
authorities  have  ever  made  application  for  it.  It  does  not  show  that 
any  steps  have  been  taken  to  comply  with  the  laws  of  the  United 
States  on  the  part  of  the  complainants,  or  to  acquire  by  purchase  or 
otherwise  from  the  United  States  the  title  which  is  alleged  to  be  out 
standing  in  the  government ;  nor  is  there  anything  in  the  case  tha 
shows  that  this  complainant,  or  those  whom  he  represents,  have  nov 
or  expect  to  obtain  this  title,  or  that  they  have  taken  any  steps  to 


6l8  LOCATIONS    AND    OTHER    RIGHTS. 

connect  themselves  with  the  government  of  the  United  States."  It  is 
true  that  such  steps  might  have  been  taken  by  the  town  authorities, 
if  it  has  any  town  organization,  or  by  complainants,  to  secure  title 
from  the  government  to  the  land  occupied  by  them  ;  but  the  fact  that 
no  such  steps  have  been  taken  does  not  deprive  the  property  own- 
ers of  the  town,  or  any  or  either  of  them,  from  protesting  against  the 
application  of  the  defendants  for  a  patent  to  the  Naid  Queen  loca- 
tion, which  includes  the  property  which  they  claim  to  own.  The  citi- 
zens of  a  town  have  as  much  right  to  build  houses  upon  the  public 
domain  in  which  to  live  as  others  have  to  locate  mining  claims  upon 
which  to  work.  One  purpose  is  as  necessary  as  the  other.  Both  are 
entitled  to  the  equal  protection  of  the  law.  Although  complainants 
have  not  connected  themselves  with  any  government  title,  nor  sought 
in  any  manner  to  secure  such  title,  yet  they  have  such  a  possessory 
right  to  the  land  upon  which  their  buildings  have  been  erected  as 
will  prevent  others,  not  having  any  title  from  the  government,  from 
entering  thereon,  and  taking  their  property  from  them,  without  first 
establishing  a  superior  right  thereto. 

There  are  many  cases  where  the  owners  of  mining  ground  valued 
at  millions  of  dollars  have  preferred  to  hold  the  same  under  "a  mere 
possessory  right"  rather  than  to  take  any  steps  to  secure  a  patent 
from  the  government.  Forbes  v.  Gracey,  94  U.  S.  762,  767.  Would 
it  not  be  absurd  to  claim  that  in  such  cases  the  owners  of  the  pos- 
sessory title,  under  valid  mining  locations,  were  not  entitled  to  any 
protection,  and  could  not  even  protest  against  the  application  of  sorne 
subsequent  locator  for  a  patent  covering  a  portion  or  all  of  their 
ground  because  they  had  never  taken  any  steps  to  secure  title  to  their 
property  from  the  United  States?  The  argument  of  counsel  would 
have  merit  if  the  complainants  were  seeking  to  set  aside  a  patent  that 
had  been  issued  by  the  United  States  to  the  owners  of  the  Naid 
Queen  location.  Being  simply  occupants  of  and  in  possession  of 
town  lots  on  the  public  lands  without  title,  they  have  no  vested  rights 
to  this  land  as  against  the  United  States  nor  any  purchaser  from 
them.  Sparks  v.  Pierce,  115  U.  S.  408,  6  Sup.  Ct.  102.  But  that  is 
not  this  case.  The  defendants  have  no  title  from  the  United  States. 
They  are  not  in  any  better  position  in  this  respect  than  the  complain- 
ants. It  is  true  that  they  are  seeking  to  procure  the  government 
title ;  but,  in  order  to  obtain  a  patent,  they  must  first  prove  that  they 
have  a  better  right  to  the  land  than  the  complainants.  The  case 
must  be  considered  upon  its  merits.    -    *    * 

The  following  diagram  shows  the  location  of  the  ground  as 
shown  by  the  survey  "made  by  the  United  States  mineral  surveyor 
in  the  application  made  In-  tlie  owners  of  the  Naid  Queen  for  a 
patent. 


TOWN    SITES. 


619 


-y««Wc/tiW^V 


,3 '"ooe  S'o(^c  WouiC 

SS  rr 


*     *     *  •  ,      .•         11  tViP  farts  and  circumstances  testified 

Taking  into  consideration  all  the  facts  a  ^  ^^^^  ^^^^^^  ^^ 

to  by  the  respective  -f^f^^^^^^^^^fever  the  probabd         or  improba- 
seems  clear  to  my  mind  that   ^^^e^f_;^^^i  ^      uartzite  and  rock  m 


620  LOCATIONS    AND   OTHER    RIGHTS. 

be,  there  was  not,  at  the  time  the  complainants  took  up,  purchased, 
or  secured  the  town  lots  upon  which  their  respective  buildings  are 
erected,  any  such  discovery  of  mineral-bearing  earth,  rock,  or  ore 
within  the  limits  of  the  Naid  Queen  location  as  would  give  to  the 
owners  of  such  location  a  prior  right  to  the  ground  and  premises 
occupied  by  the  complainants  herein.  It  must  be  borne  in  mind  that 
this  is  not  a  contest  between  two  mining  companies,  both  claiming 
the  ground  as  mineral  land,  and  each  claiming  to  be  the  first  locator, 
or  the  first  to  discover  rock  in  place  bearing  mineral.  In  all  such 
cases  the  question  as  to  what  constitutes  a  discovery  of  a  vein  or  lode 
under  the  provisions  of  section  2320,  Rev.  St.,  is  governed  by  the 
rule  announced  in  Book  v.  Mining  Co.,  58  Fed.  106,  121,  that,  when 
a  locator  of  a  mining  claim  finds  rock  in  place  containing  mineral  in 
sufficient  quantity  to  justify  him  in  expending  his  time  and  money 
in  prospecting  and  developing  the  claim,  he  has  made  a  discovery, 
within  the  meaning  of  the  statute,  whether  the  rock  or  earth  is  rich 
or  poor,  whether  it  assays  high  or  low,  with  this  qualification :  that 
the  definition  of  a  lode  must  always  have  special  reference  to  the 
formation  and  peculiar  characteristics  of  the  particular  district  in 
which  the  lode  or  vein  is  found.  This  rule  has  always  prevailed 
in  the  courts,  as  is  clearly  shown  in  the  numerous  authorities  there 
cited.  See,  also,  McShane  v.  Kenkle  (Mont.)  44  Pac.  979,  981. 
Why?  Because  it  was  never  intended  that  the  courts  should  weigh 
scales  to  determine  the  value  of  the  mineral  found  as  between  a  prior 
and  subsequent  locator  of  a  mining  claim  on  the  same  lode.  But 
where  the  rights  of  claimants  to  a  town  site,  or  to  agricultural  land, 
or  as  between  the  locators  of  a  placer  claim  and  others  claiming  a 
vein  or  lode  to  the  same  ground,  are  involved,  other  questions  must 
be  considered.  In  all  such  cases  there  are  different  statutes  to  be 
construed,  and  a  somewhat  different  rule  prevails.  This  is  clearly 
stated  by  the  court  of  appeals  of  this  circuit  in  Migeon  v.  Railway 
Co.,  23  C.  C.  A.  156,  y'j  Fed.  249,  256.  In  a  case  of  contest  between 
mineral  claimants  on  one  side  and  parties  holding  town-site  patents 
on  the  other  the  supreme  court  has  repeatedly  declared  that  under  the 
acts  of  congress  which  govern  such  cases,  in  order  to  except  mines 
or  mineral  lands  from  the  operation  of  a  town-site  patent,  it  is  not 
sufficient  that  the  lands  do  in  fact  contain  minerals,  or  even  valuable 
minerals,  when  the  town-site  patent  takes  effect,  but  they  must  at 
that  time  be  known  to  contain  mineral  of  such  extent  and  value  as 
to  justify  expenditures  for  the  purpose  of  extracting  them;  and, 
if  the  lands  are  not  known  at  that  time  to  be  so  valuable  for  mining 
purposes,  the  fact  that  they  have  once  been  valuable,  or  are  after- 
wards discovered  to  be  still  valuable,  for  such  purposes,  does  not 
defeat  or  impair  the  title  of  persons  claiming  under  the  town-site 
patent.  Defifeback  v.  Hawke,  115  U.  S.  393,  404,  6  Sup.  Ct.  95; 
Davis  V.  Weibbold,  139  U.  S.  507,  525,  11  Sup.  Ct.  628;  Dower  v. 


TOWN    SITES.  621 

Richards,  151  U.  S.  658,  663,  14  Sup.  Ct.  452.    In  Davis  v.  Weib- 
bold,  the  court,  after  announcing  the  rule  as  above  stated,  said : 

"In  connection  with  these  views  it  is  to  be  borne  in  mind,  also,  that  the 
object  of  the  town-site  act  was  to  afford  relief  to  the  inhabitants  of  cities  and 
towns  upon  the  public  lands  by  giving  title  to  the  lands  occupied  by  them, 
and  thus  induce  them  to  erect  suitable  buildings  for  residence  and  business. 
Under  such  protection  many  towns  have  grown  up  on  lands  which,  previously 
to  the  patent,  were  part  of  the  public  domain  of  the  United  States,  with 
buildings  of  great  value  for  residence,  trade,  and  manufactures.  It  would, 
in  many  instances,  be  a  great  impediment  to  the  progress  of  such  towns  if  the 
titles  to  the  lots  occupied  by  their  inhabitants  were  subject  to  be  overthrown 
by  a  subsequent  discovery  of  mineral  deposits  under  their  surface.  If  their 
title  would  not  protect  them  against  a  discovery  of  mines  in  them,  neither 
would  it  protect  them  against  the  invasion  of  their  property  for  the  purpose 
of  exploring  for  mines.  The  temptation  to  such  exploration  would  be  ac- 
cording to  the  suspected  extent  of  the  minerals,  and,  being  thus  subject  to 
indiscriminate  invasion,  the  land  would  be,  to  one  having  the  title,  poor  and 
valueless,  just  in  proportion  to  the  supposed  richness  and  abundance  of  its 
products.  We  do  not  think  that  any  such  results  were  contemplated  by  the 
act  of  congress,  or  that  any  construction  should  be  given  to  the  provision  in 
question  which  would  lead  to  such  results." 

I  am  of  opinion  that  those  cases,  and  the  principles  therein  an- 
nounced, are  applicable  to  this  case.  It  is  true  that  no  steps  have 
even  been  taken  by  the  town-site  claimants  of  De  Lamar  to  obtain  a 
town-site  patent  in  order  to  procure  a  title  from  the  government. 
They  might  have  done  so ;  and,  if  they  had,  then  the  mineral  claim- 
ants to  the  Naid  Queen  mining  location  could  have  protested,  and  the 
identical  question  here  raised  would  then  have  been  presented.  The 
fact  as  to  which  party  first  applies  for  a  patent  certainly  cannot  make 
any  difference  in  the  principle  which  is  involved. 

It  was  argued  by  counsel  for  complainants  that,  if  any  discovery 
of  a  lode  or  vein  was  made  in  the  Naid  Queen  location,  it  was  a  vein 
that  ran  in  an  easterly  and  westerly  direction  at  the  northerly  end 
of  the  location.  It  was  also  claimed  that  the  application  for  a  patent 
by  the  defendants  was  not  made  in  good  faith  for  the  purpose  of 
procuring  a  patent  to  mining  ground  for  mining  purposes,  but  was 
an  attempt  to  obtain  a  patent  for  the  sole  purpose  of  getting  title  to 
the  town  lots  and  buildings  in  possession  of  the  complainants.  It  is 
undoubtedly  true  that  in  a  case  like  the  present,  where  complainants 
acted  in  the  utmost  good  faith  in  locating  upon  or  purchasing  the 
town  lots  upon  which  their  improvements  are  made,  under  the 
belief  that  the  land  was  not  mineral,  their  rights  ought  not  to  be 
disturbed  without  clear  and  satisfactory  proof  that  within  the  limits 
of  the  mining  location  there  had  been  found  a  lode  or  vein  which,  in 
its  natural  course  and  direction,  would  give  the  owners  thereof  a 
right  to  all  the  surface  ground  within  the  limits  of  the  location.  In 
other  words,  if  the  proofs  were  undisputed  that  a  discovery  of  a 
lode  or  vein  had  been  found  at  the  northerly  end  of  the  Naid  Queen 
location ;  that  from  such  discovery  it  clearly  appeared  that  the  course 


622  LOCATIONS    AND   OTHER    RIGHTS. 

of  the  lode  lengthwise  was  easterly  and  westerly,  and  at  right 
angles  within  the  side  lines  of  the  Naid  Queen, — then,  in  the 
eye  of  the  law,  the  side  lines  of  the  location  as  made  upon  the 
ground  would  become  the  end  lines  of  the  location  (King  v.  Mining 
Co.,  152  U.  S.  222,  228,  14  Sup.  Ct.  510;  Last  Chance  Min.  Co. 
V.  Tyler  Min.  Co.,  157  U,  S.  683,  687,  15  Sup.  Ct.  733),  and  the  own- 
ers of  the  claim  would  only  be  entitled  to  a  patent  for  300  feet  of 
surface  ground  on  each  side  of  the  middle  of  the  lode ;  and  hence 
it  would  not  interfere  with  complainants'  rights.  There  is  more  or 
less  testimony  that  tends  to  support  that  theory,  but  the  views 
already  expressed  are  decisive  of  the  case,  and  render  it  unnecessary 
to  decide  other  questions  raised  by  counsel.  The  defendants  are 
not  entitled  to  a  patent  for  any  part  or  portion  of  the  land  claimed 
and  occupied  by  the  complainants.  The  complainants  are  entitled 
to  judgment  for  their  costs.    Let  a  decree  be  entered  accordingly.^^ 


GOLDEN  V.  MURPHY  et  al. 
1909.     Supreme  Court  of  Nevada.     31  Nev.  395,  103  Pac.  394. 

Action  by  Frank  Golden  against  J.  C.  Murphy  and  others.  Judg- 
ment for  plaintiff,  and  defendants  appeal.     Affirmed. 

NoRCROSs.  C.  J.^^ — *  *  '■'  Upon  a  second  trial  of  the  case  with 
a  jury  a  verdict  was  rendered  upon  general  and  special  issues  in 
favor  of  the  plaintiff  and  for  $500  damages;  judgment  and  decree 
entered  accordingly,  and  for  a  perpetual  injunction.  A  motion  for  a 
new  trial  was  denied.  From  said  judgment  and  decree,  and  from  the 
order  overruling  the  motion  for  a  new  trial,  the  case  again  comes  to 
this  court  upon  appeal.    *    *    * 

The  action  was  brought  to  recover  damages  in  the  sum  of  $7,000 
for  the  extraction  of  ores  by  the  defendants  Murphy  and  Byers 
within  the  exterior  lines,  extended  vertically  downwards  of  the 
Table  Mountain  mine,  a  patented  claim,  upon  a  part  of  which  they 
held  a  lease  from  the  then  owner,  the  said  Royal  Mining  Company ; 
also  for  an  injunction  restraining  the  defendants  from  the  further 
working  upon  the  ledge,  which  plaintiff  alleged  has  its  apex  upon 
the  Canyon  mining  claim,  claimed  to  be  the  property  of  the  plain- 
tiff.   *    *    * 

The  issues  raised  by  the  amended  pleadings  were  the  same  as  at 
the  first  trial,  with  the  exception  that  the  defendants  by  their 
amended  answer  attacked  the  validity  of  the  canyon  mining  claim, 
and  hence  the  right  of  the  plaintiff  to  base  any  extralateral  or  other 

^  On   townsite   entries,   see   Costigan,    Mining  Law,  95-102. 
"  Parts  of  the  opinion  are  omitted. 


TOWN    SITES.  623 

rights  thereon,  by  reason  of  the  alleged  fact  that  the  ground  covered 
by  the  said  Canyon  mining  claim  was  embraced  within  the  original 
town-site  patent  of  Silver  City. 

The  allegations  in  the  several  ansv^^ers  of  the  defendants  respect- 
ing the  Silver  City  town  site  and  the  invalidity  of  the  Canyon  loca- 
tion are  as  follows:  "(a)  This  defendant  denies  that  plaintiff  now 
is,  or  ever  was,  the  owner  of,  or  ever  entitled  to  the  possession  of,  the 
mining  claim  described  in  the  complaint,  situate  in  the  Devil's  Gate 
and   Chinatown   mining  district,   Lyon   county,   Nev.,  or  any  part 
thereof.     And  in  connection  herewith  this  defendant  avers  that  in 
the  year  1884  one  W.  J.  Westerfield,  being  one  of  the  predecessors 
in  interest  of  plaintiff,  made  a  location  of  the  Canyon  mining  claim 
described  in  the  complaint,  but  that  at  said  date  the  land  upon  which 
said  location  was  made  had  been  conveyed  by  patent  to  William 
Hayden,   district  judge  of  the  state  of   Nevada,   Lyon  county,   as 
trustee  in  trust,  granting  a  town  site  to  the  inhabitants  of  Silver 
City,  Lyon  county,  Nev.,  and  that  such  attempted  location  by  said 
W.  J.  Westerfield  gave  him  no  color  of  title  to  said  mining  claim, 
or  any  part  thereof,  either  express  or  implied,  that  said  Silver  City 
town  site  was  sold  by  the  government  of  the  United  States,  as  afore- 
said, on  or  about  June  26,  1868,  under  the  act  of  Congress  of  1867, 
and  that  the  declaratory  statement  was  filed  on  or  about  December 
2,    1867,  and  that  the  patent  of  the  United  States  was   issued  to 
said  William  Hayden  in  trust  as  aforesaid,  on  or  about  September 
20,  1873,  and  to  the  successors  of  said  William  Hayden,  and  that  on 
or  about  May  8,  1876,  the  successor  of  said  William  Hayden  sold 
and  conveyed  to  one  Joseph  Angell  and  Joseph  Monckton  lot  No. 
268  of  said  patented  town  site,  and  on  or  about  the  same  day  said 
successor  of  said  William  Hayden  sold  and  conveyed  to  one  W.  C. 
Dovey,  lets  Nos.  267  and  269  of  said  town-site  patent,  which  said 
lots    cover   all   of    said    Canyon    mining   claim    attempted    location, 
(b)  Defendants  are  informed  and  believe,  and  upon  their  informa- 
tion and  belief  allege  the  fact  to  be,  that  on  the  date  September  20, 
1873,  being  the  date  of  the  issuance  of  the  Silver  City  town-site 
patent  above  described,  the  land  described  in  the  complaint  as  the 
Canyon   mining   claim    was    not   a   valid,   existing,   located   mining 
claim,  and  that  at  said  date  said  land  was  not  known  to  be  valuable 
for  its  minerals,  and  that  subsequentlv  and  on  or  about  the  8th  day 
of  March,  1876,  one  A.  W.  Piper  and  T.  S.  Davenport  attempted  to 
make  a  location  of  said  mining  ground,  and  called  it  the  Richmond 
G.  &  S.  M.  Co.,  and  that  said  ground  at  said  time  belonged  to  the 
Silver  City  town  site,  and  was  not  locatable,  and  that  on  or  about  the 
ist  day  of  January,  1884,  said  Piper  and  Davenport  abandoned  and 
forfeited  their  said  attempted  location,  and  that  2  months  and  21 
days  thereafter,  being  on  "the  21st  day  of  March,   1884,  one  W.  J. 
Westerfield,  predecessor  in  interest  and  grantor  of  plaintiff,  Frank 
Golden,  attempted  to  make  a  relocation  of  said  Richmond  G.  &  S. 


624  LOCATIONS    AND   OTHER   RIGHTS. 

M.  Co.  claim,  and  after  going  through  the  acts  of  location,  called  it 
the  Canyon  mining  claim,  and  that  all  such  attempted  locations  and 
acts  are  contrary  to  law,  and  without  right."  The  only  amendment 
to  plaintiff's  complaint  was  in  reference  to  paragraph  3,  which,  as 
amended,  reads  as  follows:  "That  for  over  10  years  immediately 
preceding  the  acts  hereinafter  complained  of,  the  plaintiff  and  his 
gTantors\vas  the  owner  of,  and  entitled  to,  the  possessioii,  and_  in 
the  quiet  and  peaceable  possession  of  the  said  Canyon  mining  claim, 
and  the  ledge  thereon." 

The  allegations  contained  in  defendants'  answers  relative  to  the 
issuance  of  the  town-site  patent  to  Silver  City  and  the  subsequent 
sale  and  conveyance  of  lots  within  said  town  site  covering  tlie 
land  embraced  within  the  boundaries  of  the  Canyon  mining  claim 
were  established  by  documentary  proof.  The  record  of  location  of 
the  Canyon  mining  claim  shows  that  it  was  located  by  W.  J.  Wester- 
field,  March  21,  1884.  The  record  is  designated  "Notice  of  Reloca- 
tion," and  in  the  body  thereof  the  following  statement  appears: 
"This  is  a  relocation  of  the  Richmond  G.  &  S.  M.  claim  and  shall  be 
known  as  the  Canyon  G.  &  S.  M.  claim.  The  said  Richmond  G.  & 
S.  M.  Claim  not  having  had  the  necessary  amount  of  labor  or  im- 
provements made  or  expended  thereon  as  required  by  the  laws  of  the 
United  States.  This  claim  is  situated  in  the  Devil's  Gate  and 
Chinatown  mining  district,  Lyon  county,  state  of  Nevada."  The 
Richmond  G.  &  S.  M.  claim  is  shown  to  have  been  located  March 
8,  1876.    *    '•-'    * 

The  record  shows  without  question  that  the  ground  embraced 
within  the  boundaries  of  the  Canyon  claim  had  been  held  as  a 
mining  claim  from  the  date  of  the  location  of  the  Richmond  G.  & 
S.  M.  claim,  March  8.  1876.  The  plaintiff  and  his  grantor  asserted 
rights  to  the  Canyon  claim  as  a  relocation  of  the  Richmond  G.  &  S. 
M.  claim.  As  relocators,  they  recognized  the  validity  of  the  prior 
location,  which,  having  become  subject  to  forfeiture,  was  forfeited 
by  relocation. 

Plaintiff's  right  to  the  ground  covered  by  the  Canyon  claim, 
regardless  of  whether  or  not  it  was  subject  to  location  as  a  mining 
claim,  may  be  supported  by  adverse  possession  alone.  Such  posses- 
sion would  give  him  all  ledges  or  veins  apexing  within  the  bound- 
aries of  the  claim,  and  the  right  to  follow  them  within  his  side 
lines,  extended  vertically  downwards,  but  whether  such  adverse  pos- 
session would  carry  with  it  extralateral  rights,  in  the  event  the 
ground  passed  to  the  town  site  for  town-site  purposes  under  its 
patent,  is  a  question,  and  one  which  we  do  not  find  to  have  ever 
been  passed  upon.  As  the  validity  of  plaintiff's  location  can  be 
determined  upon  other  facts  of  the  case,  we  shall  not  now  attempt 
its  solution.  If  the  ground  in  question  never  passed  under  the  town- 
site  patent,  then  it  is  not  questioned  but  that  the  plaintiff  is  entitled 
to  any  extralateral  rights  which  he  may  have  established  by  proof 


TOWN    SITES.  625 

in  this  case.  The  reservation  in  the  town-site  patent  is  in  accordance 
with  the  provisions  of  the  Acts  of  Congress  of  March  2,  1867,  c. 
177,  14  Stat.  541,  and  of  June  8,  1868  (chapter  53,  15  Stat.  67), 
as  united  and  incorporated  into  section  2392  of  the  Revised  Statutes 
of  the  United  States  (U.  S.  Comp.  St.  1901,  p.  1459),  which  reads 
as  follows:  "No  title  shall  be  acquired  under  the  foregoing  pro- 
visions of  this  chapter  to  any  mine  of  gold,  silver,  cinnabar  or 
copper,  or  to  any  valid  mining  claim  or  possession  held  under  exist- 
ing laws." 

Counsel  for  appellants  urges  that  the  evidence  shows  without 
conflict  that  the  land  embraced  within  the  Canyon  claim  was  not 
known  to  be  valuable  for  its  minerals  prior  to,  and  at  the  time  of,  the 
issuance  of  the  town-site  patent,  and  hence  that  it  passed  to  the  town 
site  under  the  patent,  and,  having  so  passed,  no  valid  mining 
claim  could  be  initiated  thereon.  In  support  of  this  position 
counsel  cites  and  relies  upon  a  number  of  decisions  of  the  Supreme 
Court  of  the  United  States,  and  particularly  the  cases  of  Davis  v. 
Weibbald,  139  U.  S.  520,  11  Sup.  Ct.  628,  35  L.  Ed.  238,  Dower  v. 
Richards,  151  U.  S.  658,  14  Sup.  Ct.  452,  38  L.  Ed.  305,  and 
Deffeback  v.  Hawke,  115  U.  S.  392,  6  Sup.  Ct.  95,  29  L.  Ed.  423. 
The  cases  supra  were  in  each  instance  controversies  growing  out 
of  conflicting  claims  to  the  ground  between  holders  of  town-site 
lots  under  the  town-site  patent  and  mining  claimants,  whose  alleged 
rights  to  the  ground  were  in  some  instances  based  upon  mining  loca- 
tions instituted  subsequent  to  the  town-site  patent.  This  case  pre- 
sents a  different  situation,  particularly  from  the  fact  that  it  is  not 
a  controversy  between  the  town-site  lot  owners  and  a  mineral  claim- 
ant. 

A  reading  of  the  statute  discloses  that  not  only  "any  mine  of  gold, 
silver,  cinnabar  or  copper"  is  exempted  from  the  provisions  of  the 
statutes,  but,  in  addition,  the  exemption  extends  to  "any  valid 
mining  claim  or  possession  held  under  existing  laws."  There  is 
evidence  in  this  case  that  the  ground  covered  by  this  Canyon  loca- 
tion was  covered  by  mining  claims  as  early  as  i860,  and  located 
and  relocated  thereafter  and  held  as  mining  ground  ever  since. 
There  is  evidence  to  the  effect,  and  counsel  for  appellant  concedes, 
that  the  Canyon  claim  was  "well-known  mining  ground"  at  the 
time  of  the  issuance  of  the  town-site  patent,  but  he  contends  that  it 
was  not  known  to  be  valuable  for  mining  purposes,  and  hence  would 
not  be  exempt  from  the  town-site  patent.  It  is  true,  however,  that 
the  mining  claimants  have  never  had  their  possession  disturbed  by 
any  one  claiming  under  the  town  site.  The  location  of  the  Rich- 
mond G.  &  S.  M.  claim  antedates  the  sale  of  the  town  lots,  under 
the  town-site  patent,  covering  the  same  ground,  and  it  does  not 
appear  that  the  town-site  lot  purchasers  ever  successfully  or  at  all, 
disputed  the  title  of  the  locators  of  the  mining  claim.     *     '^     * 

It  is  clear  from  the  language  used  in  the  statute,  and  from  the 

40 — Mining  Law 


626  LOCATIONS    AND    OTHER    RIGHTS. 

Opinions  expressed  by  the  Supreme  Court  of  the  United  States,  par- 
ticularly in  the  Davis  v.  Weibbald  Case,  supra,  that  land,  held  as  a 
valid  and  subsisting  mining  claim  at  the  time  of  the  issuance  of 
the  town-site  patent,  does  not  pass  under  such  patent,  nor  is  the 
title  or  right  of  possession  of  the  location  at  all  affected  thereby. 
"As  said  in  Belk  v.  Meagher,  104  U.  S.  279,  283,  26  L.  Ed.  735 : 
'A  mining  claim  perfected  under  the  law  is  property,  in  the  highest 
sense  of  diat  term,  which  may  be  bought,  sold,  and  conveyed,  and 
will  pass  by  descent.'  It  is  not,  therefore,  subject  to  the  disposal  of 
the  government."  Noyes  v.  Mantle,  127  U.  S.  353,  8  Sup.  Ct.  1134 
(32  L.  Ed.  168).  "A  valid  mining  claim  can  only  be  based  upon 
a  discovery  within  the  limits  of  the  claim,  and  the  existence  of  min- 
eral in  such  quantities  as  to  render  the  land  rnore  valuable  for 
mining  than  for  any  other  purpose,  or  as  will  justify  a  prudent  man 
in  the  expenditure  of  time  and  money  in  its  exploration  and  develop- 
ment."   Lindley  on  Mines,  §  176. 

It  may  be  seriously  questioned  whether  a  discovery,  sufficient 
to  support  a  valid  mining  location  so  as  to  exempt  such  location 
from  the  provisions  of  a  town-site  patent,  could  be  held  to  the  same 
degree  of  strictness  as  would  be  required  in  the  case  of  a  mine 
known,  or  claimed  to  be  known,  to  exist  at  the  time  of  the  issuance 
of  such  town-site  patent,  but  which  had  not  previously  been  located. 
In  the  case  at  bar,  while  it  appears  that  the  ground  embraced  within 
the  Canyon  claim  was  sold  as  town  lots  under  the  town-site  patent, 
it  does  not  appear  that  the  lot  purchasers  ever  acquired,  or  attempted 
to  acquire,  possession  from  the  claimants  to  the  ground  under  prior 
existing  mining  locations.  The  evidence  is  conclusive,  we  think, 
that  the  ground  covered  by  the  Canyon  claim  has  been  held  as  a 
valid  and  subsisting  mining  claim  from  a  time  long  prior  to  the  date 
of  the  town-site  patent  down  to  the  present.  No  one  in  a  position  to 
question  the  right  of  the  plaintiff,  his  grantor,  and  prior  locators  of 
the  ground  covered  by  the  Canyon  claim  to  hold  the  same  as 
mining  ground,  have  ever  established,  or  attempted  to  establish,  so 
far  as  the  record  show^s,  a  superior  right  to  the  ground.  Under  this 
state  of  facts  it  follows  as  a  matter  of  law  that  the  Canyon  mining 
claim  is  a  valid  mining  claim  unaffected  by  the  town-site  pat- 
ent.   *    *    * 

4.*  '■'■  *  Counsel  for  appellant  contends,  as  a  matter  of  law,  that 
"no  extralateral  right  can  legally  exist  through  a  mineralized  hang- 
ing and  foot-wall  formation,  which  is  sufficiently  mineralized  to 
sustain  a  mining  location,  and  to  induce  the  miner  and  prospector 
to  expend  his  time  and  money  in  the  exploration  thereof,  even 
though  scientists  and  geologists  and  hired  experts  might  find 
sufficient  provocation  to  swear  that  they  detect  walls  to  any  forma- 
tion which  they  call  an  independent  vein  coursing  through  such 
mineralized  formation."  We  do  not  think  counsel's  contention  can 
be  supported  as  an  inflexible  rule  of  law.   We  think  counsel  fails  to 


MILL    SITES.  627 

distinguish  between  what  is  sufficient  in  the  law  to  constitute  a  dis- 
covery sufficient  to  support  a  vahd  location  of  a  mining  claim  and 
what  constitutes  a  vein  having  defined  walls,  and  to  which  extra- 
lateral  rights  attach.  If  we  understand  counsel  correctly,  he  takes 
the  position  that  there  is  no  distinction,  and  in  this  we  think  he  is  in 
error.  Suppose  a  vein  containing  valuable  ore  has  well-defined 
wall,  which  are  themselves  but  a  part  of  a  mineralized  zone,  which 
carries  small  values,  and  which  in  places  contains  seams  of  quartz 
sufficiently  valuable  to  support  a  mining  location,  can  it  be  said  that 
such  vein  cannot  be  regarded  as  separate  and  distinct  from  the 
mineralized  zone?  We  think  it  cannot  be  so  said.  What  may  con- 
stitute a  discovery  sufficient  to  validate  a  location  may  be,  and  fre- 
quently is,  a  very  different  thing  from  what  constitutes  an  apex  of  a 
vein  which  will  entitle  the  owner  thereof  to  extralateral  rights.    ■■■    *    * 

The  mineral  zone  in  question  in  this  case  is  described  as  country 
rock  cut  by  a  series  of  independent  ledges  of  an  approximately 
parallel  dip,  any  one  of  which  ledges  has  its  entire  system  of  walls. 
Within  this  country  rock  comprising  the  mineral  zone,  at  "wide 
intervals,  as  you  would  find  in  the  bedding  and  cracks  of  any  rock," 
are  found  "quartz  seamlets."  The  fact  that  the  Canyon  ledge 
passes  through  a  mineral  zone  of  this  character  does  not,  we  think, 
make  it  an  inseparable  part  of  the  general  mass  of  rock  comprising 
the  zone,  but  upon  the  contrary,  that  it  may  be  regarded  separate 
and  distinct  therefrom,  and  may  be  followed  upon  its  dip.  In  the 
former  appeal  of  this  case,  we  said:  "If  small  pieces  of  quartz,  nar- 
row seams,  and  little  pockets  of  ore  embodied  in  porphery  be  deemed 
sufficient  to  sustain  a  location,  we  do  not  understand  that  they  give 
the  owner  any  greater  rights  against  veins  apexing  on  other  claims 
dipping  under  this  ground  than  he  would  have  if  his  location  were 
based  upon  a  substantial  and  well-defined  ledge."     *     *     * 

The  record  contains  a  number  of  other  assignments  of  error,  but 
the  view  which  we  have  taken  upon  the  main  questions  heretofore 
considered  makes  it,  we  think,  unnecessary  to  consider  them. 

The  judgment  and  order  appealed  from  are  affirmed.^* 


Section  7. — Mill  Sites. 

FEDERAL  STATUTE. 

Sec  2337.  Where  nonmineral  land  not  contiguous  to  the  vein  or  lode  is 
used  or  occupied  by  the  proprietor  of  such  vein  or  lode  for  mining  or  milling 
purposes,  such  nonadjacent  surface  ground  may  be  embraced  and  inchided  in 
an  application  for  a  patent  for  such  vein  or  lode,  and  the  same  may  be  pat- 
tented  therewith,  subject  to  the  same  preliminary  requirements  as  to  survey 
and  notice  as  are  applicable  to  veins  or  lodes ;  but  no  location  hereafter  made 
of  such  nonadjacent  land  shall  exceed  five  acres,  and  payment  for  the  same  • 

"  On  rehearing  the  conclusions  reached  were  adhered  to.  See  Golden  v. 
Murphy,  31   Nev.  395,  105   Pac.  99. 


628  LOCATIONS    AND   OTHER    RIGHTS. 

must  be  made  at  the  same  rate  as  fixed  by  this  chapter  for  the  superficies  of 
the  lode.  The  owner  of  a  quartz  mill  or  reduction  works,  not  owning  a  mine 
in  connection  therewith,  may  also  receive  a  patent  for  his  mill  site,  as  provided 
in  this  section.    Rev.  St.  U.  S.  §  2337. 


CLEARY  V.  SKIFFICH  et  al. 
1901.     Supreme  Court  of  Colorado.       28  Colo.  362,  65  Pac.  59. 

Action  by  Simon  Skiffich  and  another  against  Reuben  St.  J. 
Cleary.  From  a  judgment  in  favor  of  plaintiffs,  defendant  appeals. 
Reversed. 

The  subject-matter  of  controversy  in  this  case  is  the  area  in  con- 
flict between  the  Zara  lode-mining  claim  and  the  Arrighi  mill  site. 
Application  for  patent  having  been  made  for  the  latter,  the  owners 
of  the  lode  claim  filed  an  adverse,  and  in  support  thereof  commenced 
this  action  against  the  applicant  for  patent  on  the  mill  site.  The 
judgment  below  was  in  favor  of  the  plaintiffs.  The  defendant  ap- 
peals. 

Gabbert,  J.^° — *  *  *  A  plea  of  defendant  was  also  interposed 
to  the  effect  that  the  land  described  in  the  complaint  was  not,  at  the 
time  it  was  located  as  a  lode  claim,  subject  to  location,  for  the  rea- 
son that  it  was  then  actually  occupied  for  a  mining  purpose  by  the 
defendant.  On  motion  of  plaintiffs,  this  plea  was  stricken  out.  It 
is  urged  by  counsel  for  defendant  that  title  to  a  mining  claim  cannot 
be  initiated  by  a  trespass.  The  lode  claim  was  discovered  without 
the  lines  of  the  mill  site.  Its  boundaries,  as  fixed,  did  embrace  a 
portion  of  the  latter.  These  facts  appear  from  the  pleadings.  In 
such  circumstances,  the  act  of  the  plaintiffs  in  projecting  the 
boundaries  of  their  claim  so  as  to  include  a  part  of  the  mill  site  was 
not  a  trespass,  and  the  motion  to  strike  was  well  taken. 

The  mill  site  was  located  in  i860,  and  ever  since  that  date,  down 
to  the  time  of  the  location  of  the  lode  claim,  in  1895,  was  in  the  un- 
interrupted possession  of  the  defendant  and  his  grantors,  who  had 
erected  a  three-stamp  mill  thereon  about  the  time  of  the  location, 
which  was  subsequently  enlarged,  and  has  been  operated  from  the 
time  of  its  construction.  Over  $16,000  has  been  expended  by  defend- 
ant and  his  grantors  in  the  way  of  improvements.  The  jury  found 
that  the  vein  of  the  lode  claim  intersected  the  mill  site.  There  is 
no  question  that  a  vein  was  discovered  on  the  lode  claiin  upon  which 
its  location  is  based,  and  that  such  vein  carries  mineral  in  appre- 
ciable quantities.  The  vein  in  question  appears  to  have  been  known 
since  about  1884,  but  no  ore  has  ever  been  shipped  therefrom,  nor 
has  there  ever  been  any  attempt  to  operate  it  as  a  mine.  Its  values 
are  shown  by  assays  only,  which,  with  one  exception,  established  that 

"  A  part  of  the  opinion  is  omitted. 


MILL    SITES.  629 

they  are  merely  nominal.  The  mill  site  is  not  located  in  connection 
with  any  mining  claim.  The  district  rules  in  force  in  the  Enter- 
prise mining  district  in  which  the  property  in  controversy  is  situ- 
ate, passed  in  1860-61,  provided  for  the  location  of  mill  sites,  and 
that  locations  for  this  purpose  shall  be  valid  as  against  all  other 
classes  of  claims.  The  mill  site  in  question  was  located  under  these 
rules,  and  in  compliance  with  their  provisions.  The  court  instructed 
the  jury,  in  substance,  that  it  is  sufficient  if  the  discovery  shaft  dis- 
closes a  vein  or  crevice  such  as  a  miner  would  be  willing  to  open  or 
follov/,  that  it  made  no  difiference  what  the  size  or  value  of  such 
vein  might  be,  that  nonmineral  land  only  can  be  taken  for  mill-site 
purposes,  and  that,  in  case  of  adverse  suit  by  a  lode-mining  claim 
against  a  mill  site,  the  latter  must  give  way  to  the  former,  provided 
it  is  shown  that  the  vein  crosses  or  intersects  the  mill  site,  and  it  is 
further  shown  that  the  lode  claim  is  a  valid,  subsisting  location.  On 
behalf  of  the  defendant  the  court  was  requested  to  direct  the  jury 
that  a  lode  claim,  under  the  terms  of  the  act  of  congress  authoriz- 
ing its  location,  must  be  upon  a  valuable  mineral  deposit,  which  was 
refused.  On  this  record,  counsel  for  defendant  contend  (a)  that  a 
mill  site  of  the  class  under  consideration  need  not  necessarily  be 
located  upon  nonmineral  ground;  (b)  that,  as  against  the  mill  site, 
the  ground  in  controversy  could  not  be  held  as  a  mining  claim  un- 
less it  appears  that  it  contains  mineral  sufficient  in  quantity  and 
quality  to  justify  extraction;  (c)  that,  under  the  district  rules  of 
Enterprise  mining  district,  defendant  has  a  vested  right  to  the  mill 
site. 

(a)  For  the  location  of  mill  sites,  congress  has  provided  that  non- 
mineral  ground  not  contiguous  to  a  lode  claim,  and  used  or  occu- 
pied by  the  owner  of  such  claim  for  mining  or  milling  purposes, 
may  be  included  in  the  application  for  patent  to  his  lode  claim,  and 
jiatented  in  connection  therewith,  and  also  that  the  owner  of  a  quartz 
mill  or  reduction  works,  not  owning  a  mine  in  connection  therewith, 
may  obtain  patent  for  his  mill  site.  Section  2337,  Rev.  St.  U.  S. 
Lender  this  section  it  is  contended  that  the  latter  class  of  mill  sites 
may  be  patented  on  mineral  land.  This  view  is  not  tenable.  The 
object  of  the  law  is  to  permit  title  to  land  to  be  acquired  for  mill 
sites  located  on  mineral  lands  which  do  not  contain  valuable  mineral- 
bearing  veins  or  mineral  deposits.  There  is  no  reason  for  a  distinc- 
tion on  account  of  the  character  of  use,  or  the  ownership  or  non- 
ownership  of  a  mine  in  connection  with  a  mill  site.  The  land  de- 
partment has  uniformly  held  that  a  mill  site  cannot  lawfully  be  lo- 
cated on  mineral  land,  without  any  attempt  to  distinguish  between 
the  two  classes,     i  Lindl.  Mines,  §  520. 

(b)  The  definition  of  a  vein,  as  given  by  the  trial  court,  is  a  gen- 
eral one  frequently  adopted  in  contests  between  conflicting  lode 
claims.  Like  all  general  rules,  it  must  be  reasonably  applied ;  for 
cases  will  arise,  under  peculiar  facts,  which  create  an  exception.     A 


630  LOCATIONS    AND   OTHER    RIGHTS. 

mill  site  is  a  mining  location,  but  the  land  which  may  be  taken  for 
that  purpose  is  of  a  special  character.  The  statute  contemplates  that 
title  to  lands  for  mill  sites  may  be  secured  which  are  prima  facie 
mineral,  but  which  in  fact  are  nonmineral,  so  the  question  presented 
is,  what  is  the  test  by  which  to  determine  whether  land  so  claimed 
is  nonmineral  or  not,  when  a  contest  arises  between  a  mill-site  loca- 
tion and  a  lode  claim  subsequently  located?  Where  lands  desig- 
nated as  mineral  have  been  claimed  and  located  as  agricultural,  it 
has  been  held  that  the  mere  presence  of  gold  in  placer  deposits,  or 
the  existence  of  a  vein  within  the  limits  of  the  land  so  claimed,  would 
not  impress  it  with  the  character  of  mineral  land.  U.  S.  v.  Reed 
(C.  C.)  28  Fed.  482;  Ah  Yew  v.  Choate,  24  Cal.  562;  Alford  v. 
Barnum,  45  Cal.  482  ;  Etling  v.  Potter,  17  Land  Dec.  Dep.  Int.  424; 
Cutting  v.  Reininghaus,  7  Land  Dec.  Dep.  Int.  265 ;  Peirano  v. 
Pondola,  10  Land  Dec.  Dep.  Int.  536.  Contests  have  frequently 
arisen  between  placer  and  subsequent  lode  locations  involving  the 
question  of  whether  or  not  the  placer  embraced  within  its  limits 
"known  lodes,"  which,  under  the  provisions  of  section  2333,  Rev. 
St.  U.  S.,  are  excepted  from  placer  patents.  In  such  cases  it  has 
been  held  that  a  known  lode  is  one  known  to  exist  at  the  time  of 
application  for  patent,  and  to  contain  minerals  in  such  quantity 
and  quality  as  to  justify  expenditures  for  the  purpose  of  extract- 
ing them.  Railroad  Co.  v.  Migeon  (C.  C.)  68  Fed.  811;  Iron 
Silver  Min.  Co.  v.  Mike  &  Starr  Gold  &  Silver  Min.  Co.,  143  U. 
S.  394,  12  Sup.  Ct.  543,  36  L.  Ed.  201  ;  Brownfield  v.  Bier 
(Mont.)  39  Pac.  461.  In  many  other  cases  the  question  as  to 
what  constitutes  mineral  lands,  as  between  the  different  classes  of 
locations  which  may  be  made  upon  lands  of  that  character,  has  been 
presented  for  determination,  either  before  the  courts  or  the  land 
department ;  and,  as  to  grants  previously  made,  the  holding  has  uni- 
formly been  that  it  is  not  every  crevice  or  outcropping  on  the  surface 
which  suggests  the  possibility  of  mineral  that  can  be  adjudged  a 
known  vein  or  lode,  within  the  meaning  of  the  statute,  but  that,  in 
addition  to  this  fact,  it  must  appear  that  such  lands  embrace  veins 
known  at  the  time  of  the  grant  thereof  to  be  sufficiently  valuable  for 
minerals  to  justify  expenditures  for  their  extraction.  Iron  Silver 
Min.  Co.  V.  Mike  &  Starr  Gold  &  Silver  Min.  Co.,  supra ;  Dower  v. 
Richards,  151  U.  S.  658,  14  Sup.  Ct.  452,  38  L.  Ed.  305;  Davis  v. 
Wiebbold,  139  U.  S.  507,  11  Sup.  Ct.  628,  35  L.  Ed.  238;  Deffeback 
V.  Hawke,  115  U.  S.  392,  6  Sup.  Ct.  95,  29  L.  Ed.  423.  These  de- 
cisions are  based  upon  the  proposition  that  one  claiming  land  as  a 
mining  location  from  which  to  extract  minerals  must  establish,  as 
against  a  prior  location  of  another  class,  that  the  ground  so  claimed 
is  valuable  to  operate  as  a  mine,  and,  unless  this  does  appear  as  a 
fact,  he  will  not  be  permitted  to  take  it  from  another  who  has  previ- 
ously located  it  in  good  faith  for  a  different  purpose.  It  has  also 
been  held,  when  this  question  was  presented,  that  it  is  one  of  fact, 


MILL    SITES.  631 

to  be  determined  by  the  jury  before  the  nisi  prius  court.  Iron  Silver 
Min.  Co.  V.  Mike  &  Starr  Gold  &  Silver  Min.  Co.,  supra.  This  neces- 
sarily follows  in  actions  brought  in  support  of  an  adverse  claim 
against  an  application  for  patent  in  those  cases  where  by  virtue  of 
the  provisions  of  sections  2325,  2326,  Rev.  St.  U.  S.,  an  adverse  is 
the  remedy,  instead  of  a  protest,  because  the  right  of  possession  of 
the  contesting  parties  turns  upon  the  character  of  the  land  in  con- 
troversy. The  same  principle  and  reasons  which  have  been  applied 
in  determining  the  rights  of  rival  claimants  of  land  for  agricultural 
or  mining  purposes,  or  as  placer  or  lode  claims,  should  control  and 
determine  the  rights  of  contestants  to  the  same  premises  when  one 
claims  as  a  mill  site,  and  the  other  as  a  subsequent  lode  location. 
It  is  a  well-known  fact  that  lands  designated  "mineral"  contain 
precious  metals  in  small  quantities,  but  not  sufficient  to  justify  the 
expense  of  attempting  to  extract  them.  It  is  not  to  such  lands  that 
the  term  "mineral,"  in  the  sense  of  the  statute  relating  to  mill  sites, 
is  applicable.  Davis  v.  Wiebbold,  supra.  Works  for  the  reduction 
of  ores  are  necessary.  They  must  be  located  in  the  near  vicinity  of 
mines.  Land  for  such  purposes  may  be  utilized,  provided  it  is  non- 
mineral.  When  that  question  is  raised  by  those  locating  a  lode  claim 
embracing  land  already  taken  as  a  mill  site,  and  upon  which  many 
thousands  of  dollars  have  been  expended  in  the  erection  of  mills, 
and  which  the  claimant  has  taken  up  in  good  faith,  the  test  must  be, 
does  such  land  contain  minerals  of  a  quantity  and  quality  which  can 
be  extracted  at  a  profit?  i  Lindl.  Mines,  §  98.  If  not,  they  are 
valueless  for  the  extraction  of  minerals,  and  therefore  nonmineral 
in  their  character,  when  previously  claimed  as  a  mill  site.  In  such 
circumstances,  that  they  are  mineral  must  be  established  as  a  fact, 
and  not  as  a  theory.  Dughi  v.  Harkins,  2  Land  Dec.  Dep.  Int.  721. 
To  permit  a  claimant,  under  the  guise  of  locating  a  lode  claim,  to 
take  from  another  land  already  utilized  for  mill-site  purposes  which 
contain  no  minerals  of  sufficient  value  to  justify  extraction,  and 
which  would  give  to  the  lode  claimant  that  which  is  of  no  value  to 
him,  except  as  he  may  convert  it  into  a  means  to  extort  from  the 
mill-site  owner  the  payment  of  money  to  prevent  the  loss  of  im- 
provements erected  in  good  faith,  would  certainly  be  inequitable  and 
unjust.  The  clear  intent  of  congress  was  to  permit  the  acquisition 
of  title  to  land  for  mill-site  purposes  which  was  not  valuable  for 
mines,  and  the  statute  should  be  given  this  construction  when  it  re- 
sults in  no  loss  to  a  subsequent  bona  fide  lode  claimant.  Any  nar- 
rower construction  would  result  in  rendering  titles  to  mill  sites  pre- 
vious to  patent  insecure,  and  the  expenditure  of  money  thereon  in 
the  erection  of  reduction  works  hazardous  in  the  extreme,  and  at 
the  same  time  reserve  from  use  for  mill-site  purposes  land  which 
was  of  no  practical  value  for  any  other. 

In  the  circumstances  of  this  case  there  is  also  presented  for  de- 
termination this  further  proposition,  namely,  as  of  what  date  must 


632  LOCATIONS    AND   OTHER    RIGHTS. 

the  mineral  character  of  the  mill  site  be  ascertained?  When  the 
validity  of  a  grant  depends  upon  certain  conditions,  it  is  the  rule 
that  such  conditions  are  those  existing  as  of  the  date  the  grant  took 
effect.  Davis  v.  Wiebbold,  supra;  Railroad  Co.  v.  Migeon,  supra; 
U.  S.  V.  Reed,  supra ;  Brownfield  v.  Bier,  supra.  Under  the  rules  of 
the  land  department,  where  the  application  is  for  patent  for  a  mill 
site  only,  as  in  this  instance,  there  must  be  a  mill  or  reduction  v^orks 
on  such  premises.  In  re  Le  Neve  Mill  Site,  9  Land  Dec.  Dep.  Int. 
460;  I  Lindl.  Mines,  §  524.  A  mill-site  claimant  would  certainly 
have  a  reasonable  time  after  taking  the  necessary  steps  to  legally 
locate  his  claim,  within  which  to  commence  the  erection  of  reduction 
works  thereon.  If  not  commenced  within  a  reasonable  time,  then 
his  rights  would  attach,  as  against  other  claimants,  from  the  time  he 
did  begin  construction  of  such  works  in  good  faith,  and  prosecuted 
them  with  reasonable  diligence.  Having  vested  and  continued,  the 
character  of  the  land  must  be  determined  of  the  date  his  rights  at- 
tached. The  fact  that  such  lands  might  contain  mineral  deposits 
which  at  a  later  date,  by  reason  of  changed  conditions,  could  be 
mined  at  a  profit,  would  not  affect  his  rights.  See  authorities  last 
above  cited.  The  rights  of  the  parties  were  therefore  dependent  upon 
the  questions  of  fact  presented  by  this  proposition.  Unless  the 
premises  in  dispute  did  in  fact  contain  mineral  deposits  of  a  value 
and  quantity  which,  under  the  conditions  existing  at  the  time  when 
the  rights  of  the  original  owners  of  the  mill-site  premises  attached, 
could  have  been  extracted  at  a  fair  mining  profit,  they  were  non- 
mineral  in  character,  and  the  jury  should  have  been  instructed  ac- 
cordingly.    I  Lindl.  Mines,  §§  94-98. 

(c)  The  district  rules  of  Enterprise  mining  district,  passed  in 
1860-61,  provided  for  the  location  of  mill  sites  without  respect  to 
the  character  of  the  land  upon  which  they  might  be  located.  The 
territorial  legislature  in  1868  declared  that  all  rights  to  any  portion 
of  the  public  domain  acquired  prior  to  the  7th  day  of  November, 
1 86 1,  should  be  determined  by  the  local  law  of  the  district  in  which 
such  tract  was  situate,  as  it  existed  on  the  day  such  rights  were 
acquired,  or  as  thereafter  may  have  existed.  Section  3609,  Mills' 
Ann.  St.  When  congress  passed  the  present  law  relating  to  mining 
claims,  all  rights  to  such  lands  were  recognized  to  the  extent  that 
they  had  attached  or  been  acquired  under  local  rules  or  customs  not 
inconsistent  with  the  laws  of  the  United  States.  Section  2319,  Rev. 
St.  U.  S.  The  same  act,  as  already  noticed,  provided  that  mill  sites 
could  only  be  legally  located  upon  nonmineral  lands.  Section  2337, 
Id.  Hence  the  rules  of  the  district  relating  to  the  location  of  mill 
sites  and  the  acts  of  the  territorial  legislature  must  yield  to  the  act 
of  congress,  in  so  far  as  they  relate  to  the  location  of  such  sites  upon 
mineral  lands,  for  in  this  particular  they  were  inconsistent  with  the 
congressional  act. 

By  supplemental  brief  filed  on  the  part  of  appellant,  two  further 


MILL    SITES.  633 

propositions  are  advanced  :  ( i )  That  the  court  erred  in  refusing  to 
instruct  the  jury  to  the  effect  that  the  location  of  a  mining  claim 
must  be  upon  the  unappropriated  public  domain  of  the  United  States, 
and  that,  plaintiff's  having  failed  to  offer  any  evidence  on  that  point, 
they  are  not  entitled  to  a  verdict.  (2)  The  court  erred  in  refusing 
to  instruct  the  jury  that  if  it  appeared  from  the  evidence  that  de- 
fendant and  his  grantors  were  in  the  actual  possession  of  the  mill 
site  at  the  time  of  the  location  of  the  Zara  lode,  claiming  to  own  the 
same,  and  operating  the  mill  by  using  water  from  the  creek  through 
a  ditch  across  the  mill  site,  such  use  and  occupation  would  give  de- 
fendant the  better  right  to  the  premises  in  dispute. 

All  the  acts  necessary  to  constitute  a  valid  location  of  the  lode 
claim  were  put  in  issue  by  the  answer.  The  court  instructed  the 
jury,  in  substance,  that  a  location  of  a  mining  claim  must  be  made 
upon  unoccupied  public  domain ;  but,  as  there  was  no  testimony 
offered  on  the  part  of  plaintiffs  to  prove  that  their  location  was  upon 
unappropriated  mineral  lands,  the  court  should  have  given  the  in- 
struction requested  by  defendant,  and  advised  the  jury  that,  in  the 
absence  of  evidence  on  this  point,  the  plaintiff  could  not  recover. 

The  next  proposition  is  based  upon  the  theory  that  as  defendant 
had  established  a  vested  right  to  the  use  of  water  flowing  in  the 
creek  upon  which  his  mill  site  is  situate,  and  across  which  a  ditch  is 
constructed  for  the  purpose  of  utilizing  such  water,  he  was  entitled 
to  hold  the  ground  in  controversy,  for  the  reason  that  the  grant  of 
the  water  carried  with  it  all  incidentals  necessary  to  its  complete  en- 
joyment, and  therefore  the  land  upon  which  the  mill  was  situate ;  it 
being  the  means  through  which  such  water  is  beneficially  used.  In 
support  of  this  proposition,  sections  2339,  2340,  Rev.  St.  U.  S.,  are 
relied  upon,  which  provide,  in  substance,  that  whenever  rights  to 
the  use  of  water  for  mining  purposes  have  vested,  and  are  recog- 
nized by  the  local  customs,  laws,  and  decisions  of  the  courts,  the 
owners  of  such  rights  shall  be  protected  in  the  same,  and  the  right 
of  way  for  the  construction  of  ditches  for  the  purpose  of  utilizing 
such  water  is  confirmed.  All  patents  shall  be  subject  to  vested  water 
rights  or  ditches  used  in  connection  therewith.  The  theory  of  coun- 
sel for  defendant  is  that  privileges  and  appurtenances  properly  be- 
longing to  the  thing  granted  pass  with  it,  and,  therefore,  the  right 
to  the  use  of  water  being  established,  sufficient  land  passed  with  that 
right  upon  which  to  beneficially  apply  the  water  so  appropriated. 
It  is  true  that  the  grant  of  a  particular  piece  of  property,  in  the  ab- 
sence of  any  limitation,  carries  with  it  those  appurtenances  neces- 
sary to  the  beneficial  enjoyment  of  the  property  granted,  which  it 
is  within  the  power  of  the  grantor  to  convey.  An  appurtenance  is 
that  which  belongs  to  something  else  as  an  adjunct  or  appendage  of 
such  moment  that  the  thing  to  which  it  attaches  cannot  be  enjoyed 
without  its  use.  It  is  therefore  limited  to  that  which  is  necessary 
to  the  enjoyment  of  the  principal  thing  granted.     Nichols  v.  Luce, 


634  LOCATIONS    AND    OTHER    RIGHTS. 

24  Pick.  102,  35  Am.  Dec.  302.  The  appurtenance  which  could  pass 
by  virtue  of  the  grant  to  a  right  to  the  use  of  water  would  be  that 
necessary  to  its  utilization,  so  that  it  could  be  applied  to  the  purpose 
for  which  it  was  appropriated.  The  right  might  become  appurtenant 
to  that  in  connection  with  which  it  was  beneficially  used,  but  the  lat- 
ter could  not  be  appurtenant  to  such  right.  It  might  as  well  be 
argued  that,  because  a  vested  right  to  the  use  of  water  had  been 
acquired  for  irrigation  purposes,  there  attached  to  such  right,  as  an 
appurtenance,  land  upon  which  to  apply  the  water,  as  to  say,  as  in 
this  instance,  there  passed  with  the  water  right  land  in  connection 
with  which  such  water  was  utilized.  The  appurtenance  attached  to 
the  water  right  of  defendant  is  the  right  of  way  for  the  ditch  through 
which  the  water  is  diverted.  That  is  not  in  controversy.  The  laws 
of  the  United  States  protect  this  right.  If  plaintiffs  should  obtain 
a  patent  to  the  lode  claim,  it  would  be  subject  to  such  right.  The 
judgment  of  the  district  court  is  reversed,  and  the  cause  remanded 
for  a  new  trial  in  harmony  with  the  views  herein  expressed.  Re- 
versed and  remanded. ^"^ 

'"In  Hartman  v.  Smith.  7  Mont.  19,  14  Pac.  648,  651,  Galbraith,  J.,  for 
the  court,  said :  "The  validity  of  the  mining  location  is  admitted,  and  it  is 
not  claimed  that  it  has  been  abandoned  or  forfeited.  The  preliminary  re- 
quirements of  the  statute,  as  to  surv^ey  and  notice,  as  to  the  mill-site,  have 
been  complied  with.  It  is  non-contiguous  to  the  mining  claim.  The  mill-site 
is  therefore  properly  appurtenant  to  the  quartz  lode  mining  claim. 

"The  location  of  the  town-site  was  made  subsequent  to  that  of  the  mill-site 
and  mining  claim.  The  act  of  congress  relative  to  town-sites  provides  that 
'no  title  shall  be  acquired,  under  the  foregoing  provisions  of  this  chapter, 
to  any  mine  of  gold,  silver,  cinnabar,  or  copper,  or  to  any  valid  mining  claim, 
or  possession  held  under  existing  laws.'  Rev.  St.  U.  S.  §  2392.  The  above 
section  IZ^l  of  the  statute,  by  requiring  the  mill-site  to  be  included  in  the 
application  for  a  patent  for  the  vein  or  lode,  and  that  the  same  preliminary 
steps,  as  to  the  survey  and  notice,  shall  be  had,  as  are  applicable  to  veins  or 
lodes,  and  that  it  shall  be  paid  for  at  the  same  rate  per  acre  as  the  mining 
claim,  and  may  be  patented  with  the  vein  or  lode  to  which  it  is  appurtenant, 
recognizes  the  mill-site  as  a  mining  possession.  The  location  of  the  mill-site, 
perfected  according  to  law,  like  that  of  a  quartz  lode  mining  claim,  operates 
as  a  grant  by  the  United  States  of  the  present  and  exclusive  possession  of  all 
the  surface  ground  included  within  its  limits.  Having  been  used  for  mining 
purposes,  in  connection  with  the  mine,  it  has  not  been  abandoned  or  forfeited. 
It  is  therefore  comprehended  within  the  above  section  2392,  and  is  reserved 
from  sale. 

"The  patent  for  the  town-site,  in  so  far  as  it  included  the  mill-site,  is  there- 
fore void,  and  the  patent  therefor  should  be  issued  in  connection  with  that 
for  the  mining  claim." 

In  Morrison's  Mining  Rights,  14  ed.,  273,  is  the  following  comment : 
"In  Hartman  v.  Smith,  7  !\Iont.  19,  14  Pac.  648,  it  was  held  that  a  mill-site 
was  a  mining  claim  and  as  such  excluded  from  a  town-site  patent.  In  Cleary 
V.  Skiffich,  28  Colo.  367,  the  court  says :  'A  mill-site  is  a  mining  location.' 
In  the  latter  case  the  expression  is  a  mere  introductory  clause.  But  to  chance 
the  exclusion  from  a  town-site  patent  to  [ofl  a  mill-site  claim  on  the  forced 
or  technical  meaning  of  one  word,  would  be  to  assume  grave  risk." 

On  mill-sites,  see  Costigan,  Mining  Law,  225-231. 


CHAPTER  X. 

OIL,  GAS  AND  OTHER   MIXING  LEASES. 

Section   1. — The   Property   Rights   of   Lessees   Under   Oil   and    Gas 
Leases.^ 


HUGGIXS  ET  AL.  V.  DALEY. 

1900.     Circuit  Court  of  Appeals.     40  C.  C.  A.  12.  99  Fed.  606. 

Before  Simoxtox,  Circuit  Judge,  and  Paul  and  Brawley,  Dis- 
trict Judges. 

^  On  the  nature  of  the  property  in  oil  and  gas  while  in  the  ground,  see 
Jones  V.  Forest  Oil  Co..  194  Pa.  379.  44  Atl.  1074;  People's  Gas  Co.  v. 
T\-ner,  131  Ind.  277.  31  X.  E.  59,  and  Ohio  Oil  Co.  v.  State  of  Indiana,  177 
U.  S.  190.  44  L.  ed.  729,  20  Sup.  Ct.  576.  In  the  last  named  case  Mr. 
Justice  White  for  the  court  pointed  out  that  ■"Whilst  there  is  an  analogy- 
between  animals  fera:  naturs  and  the  moving  deposits  of  oil  and  natural 
gas.  there  is  not  identity-  between  them.  Thus,  the  owner  of  land  has  the 
exclusive  right  on  his  property-  to  reduce  the  game  there  found  to  possession, 
just  as  the  owner  of  the  soil  has  the  exclusive  right  to  reduce  to  possession 
the  deposits  of  natural  gas  and  oil  found  beneath  the  surface  of  his  land. 
The  owner  of  the  soil  cannot  follow  game  when  it  passes  from  his  property-; 
so,  also,  the  owner  may  not  follow  the  natural  gas  when  it  shifts  from  beneath 
his  own  to  the  propertj-  of  someone  else  within  the  gas  field.  It  being  true 
as  to  both  animals  fcra  natures  and  gas  and  oil.  therefore,  that  whilst  the  right 
to  appropriate  and  become  the  owner  exists,  proprietorship  does  not  take  being 
until  the  particular  subjects  of  the  right  become  property-  by  being  reduced 
to  actual  possession.  The  identity,  however,  is  for  many  reasons  wanting. 
In  things  fere  natura  all  are  endowed  with  the  power  of  seeking  to  reduce 
a  portion  of  the  public  propem-  to  the  domain  of  private  ownership  by 
reducing  them  to  possession.  In  the  case  of  natural  gas  and  oil  no  such 
right  exists  in  the  public.  It  is  vested  onlj-  in  the  owners  in  fee  of  the 
surface  of  the  earth  within  the  area  of  the  gas  field.  This  difference  points  at 
once  to  the  distinction  between  the  power  which  the  law-maker  maj-  exercise 
as  to  the  two.  In  the  one,  as  the  public  are  the  owners,  every  one  may  be 
absolutely  prevented  from  seeking  to  reduce  to  possession.  No  divesting  of 
private  property  under  such  a  condition  can  be  conceived,  because  the  public 
are  the  owners,  and  the  enacting  by  the  state  of  a  law  as  to  the  public  owner- 
ship is  but  the  discharge  of  the  governmental  trust  resting  in  the  state  as  to 
property  _of  that  character.  Gccr  v.  Connecticut,  161  U.  S.  519,  525,  40  L. 
ed.  793._  795,  16  Sup.  Ct.  Rep.  600.  On  the  other  hand,  as  to  gas  and  oil 
the  surface  proprietors  within  the  gas  field  all  have  the  right  to  reduce  to 
possession  the  gas  and  oil  beneath.  They  could  not  be  absolutely  deprived 
of  this   right   which  belongs  to   them  without   a  taking  of  private   propertj-. 


636  OIL,    GAS    AND   OTHER    MINING    LEASES. 

Brawley,  District  Judge.- — This  is  an  appeal  from  the  circuit 
court  of  the  United  States  for  the  district  of  West  Virginia.  The 
appellee  filed  a  bill  in  equity  alleging  that  one  A.  P.  Hodges  had 
obtained  from  F.  P.  Marshall  a  lease  for  oil  and  gas  upon  a  cer- 
tain tract  of  50  acres  of  land  situated  in  Ritchie  county,  W.  Va., 
which  had  been  assigned  to  him,  and  that  subsequently  said  Marshall 
had  leased  the  identical  premises  to  J.  J.  and  J.  B.  Huggins ;  and  the 
prayer  of  the  bill  was  that  the  said  Huggins'  and  their  associates 
should  be  restrained  in  prosecuting  the  work  for  developing  said 
leasehold  for  oil,  and  that  a  receiver  be  appointed  to  take  possession 
of  said  leasehold  premises  and  operate  the  same,  and  that  a  decree 
should  be  entered  canceling  said  lease  as  a  cloud  upon  the  title  of 
the  appellee. 

Marshall  was  an  illiterate  farmer,  the  ow^ner  in  fee  of  the  tract  of 
land  described;  and  on  March  12,  1897.  he  entered  into  an  agree- 
ment, under  seal,  of  which  the  substantial  parts  are  as  follows : 

In  consideration  of  one  dollar  paid  by  Hodges,  the  lessee,  the  lessor  "does 
hereby  grant,  demise,  and  let  unto  the  said  lessee  all  the  oil  and  gas  in  and 
under  the  following  described  tract  of  land,  and  also  said  tract  of  land  for  the 
purpose  of  operating  thereon  for  oil  and  gas,  with  the  right  to  use  water  there- 
from, and  all  rights  and  privileges  necessary  or  convenient  for  conducting 
said  operations  and  the  transportation  of  oil  and  gas,  and  waiving  all  rights 
to  claim  or  hold  any  of  the  property  or  improvements  placed  or  erected  in 
and  upon  said  land  by  the  lessee  as  fixtures  or  as  part  of  the  realty." 

Then  follows  the  description  of  the  land.  The  habendum  clause 
is  as  follows : 

"To  have  the  same  unto  and  for  the  use  of  the  lessee,  his  executors,  admin- 
istrators, and  assigns,  for  the  term  of  5  years  from  the  date  thereof,  and  as 
much  longer  as  oil  or  gas  is  found  in  paying  quantities  thereon,  not  exceeding 

But  there  is  a  coequal  right  in  them  all  to  take  from  a  common  source  of 
supply  the  two  substances  which  in  the  nature  of  things  are  united,  though 
separate.  It  follows  from  the  essence  of  their  right  and  from  the  situation 
of  the  things  as  to  which  it  can  be  exerted,  that  the  use  by  one  of  his  power 
to  seek  to  convert  a  part  of  the  common  fund  to  actual  possession  may 
result  in  an  undue  proportion  being  attributed  to  one  of  the  possessors  of 
the  right  to  the  detriment  of  the  others,  or  by  waste  by  one  or  more  to  the 
annihilation  of  the  rights  of  the  remainder.  Hence  it  is  that  the  legislative 
power,  from  the  peculiar  nature  of  the  right  and  the  objects  upon  which 
it  is  to  be  exerted,  can  be  manifested  for  the  purpose  of  protecting  all  the 
collective  owners,  by  securing  a  just  distribution,  to  arise  from  the  enjoy- 
ment, by  them,  of  their  privilege  to  reduce  to  possession,  and  to  reach  the 
like  end  by  preventing  waste.  This  necessarily  implied  legislative  authority 
is  borne  out  by  the  analogy  suggested  by  thing  ferce  nature,  which  it  is 
unquestioned  the  legislature  has  the  authority  to  forbid  all  from  taking,  in 
order  to  protect  them  from  undue  destruction,  so  that  the  right  of  the  com- 
mon owners,  the  public,  to  reduce  to  possession,  may  be  ultimately  efficaciously 
enjoyed."  On  natural  gas  as  property,  see  also  West  v.  Kansas  Gas  Co.,  221 
U.  S.  229,  31  Sup.  Ct.  564. 
^  Parts  of  the  opinion  are  omitted. 


PROPERTY    RIGHTS    OF   LESSEES.  637 

the  term  of  35  years  from  the  date  thereof ;  yielding  and  paying  to  the  lessor 
the  one-seventh  part  or  share  of  all  the  oil  produced  and  saved  on  the 
premises." 

Then  follows  a  further  description  of  the  method  of  delivering 
the  oil  into  tanks,  and  a  reservation  of  gas  for  the  personal  use  of 
the  lessor,  and  a  proviso  v/hich  is  in  the  following  terms : 

"Provided,  however,  that  a  well  shall  be  commenced  upon  the  above- 
described  premises  within  30,  and  completed  within  90,  days  from  the  date 
hereof;  and,  in  case  of  failure  to  commence  and  complete  said  well  as  afore- 
said, the  lessee  shall  pay  to  the  lessor  a  forfeiture  of  $50." 

This  lease  was  not  recorded  until  April  8,  1898.  At  the  same  time 
was  recorded  an  assignment  of  a  half  interest  in  said  lease  by 
Hodges  to  Daley,  dated  April  2,  1897,  and  acknowledged  on  April 
4,  1898,  and  the  assignment  of  the  remaining  half  interest,  dated 
April  2,  1898,  and  acknowledged  April  4,  1898.  The  lease  from 
Marshall  to  J.  J.  and  J.  B.  Huggins  was  executed  November  6, 
1897,  and  recorded  January  31,  1898.     *     *     * 

The  question  for  decision  is  whether  the  proviso  in  the  Hodges 
lease  constituted  a  condition  precedent,  and  whether  the  failure  of 
Hodges  to  do  anything  towards  the  boring  of  the  well  did  not  pre- 
vent the  vesting  of  any  rights  under  that  lease.  By  the  terms  of 
that  instrument  the  lessor  granted  to  the  lessee  all  the  oil  and  gas 
in  and  under  the  land  described,  "and  also  the  said  tract  of  land  for 
the  purpose  of  operating  thereon  for  oil  and  gas."  By  a  course  of 
decisions  it  is  well  settled  in  West  Virginia  that  a  lease  of  this  char- 
acter is  not  a  grant  of  property  in  the  oil  or  in  the  land,  but  merely 
a  grant  of  possession  for  the  purpose  of  searching  for  and  procuring 
oil.  The  title  is  inchoate,  and  for  the  purpose  of  exploration  only 
until  the  oil  is  found,  li  it  is  not  found,  no  estate  vests  in  the  lessee ; 
and.  Where  the  sole  compensation  to  the  landlord  is  a  share  of  what 
is  produced,  there  is  always  an  implied  covenant  for  diligent  search 
and  operation.  There  is,  perhaps,  no  other  business  in  which  prompt 
performance  is  so  essential  to  the  rights  of  the  parties,  or  delays  so 
likely  to  prove  injurious — no  other  class  of  contracts  in  which  time 
is  so  much  of  the  essence.  There  is  no  other  branch  of  mining  where 
greater  damage  is  done  by  delay.  Coal  and  precious  metals  lie 
either  in  horizontal  veins  or  in  pockets.  They  remain  where  they 
are  until  removed.  Oil  and  gas  are  the  most  uncertain,  fluctuating, 
volatile,  and  fugitive  of  all  mining  properties.  They  lie  far  below 
the  surface,  beyond  the  control  of  human  will,  and  beyond  the 
reach  of  any  legal  process,  whence  they  may  flow  unrestrained  if 
the  owner  of  adjoining  land  bores  a  well  down  to  the  strata  which 
holds  them ;  and  there  is  no  law  which  can  provide  adequate,  or  in- 
deed any,  compensation  for  such  results.  This  is  a  matter  of  com- 
mon knowledge,  and  "courts  will  generally  take  notice  of  whatever 


638  OIL,    GAS    AND    OTHER    MINING    LEASES. 


ought  to  be  generally  known  within  the  limits  of  their  jurisdiction." 
Greenl.  Ev.  §  6.  It  furnished  the  ground  upon  which  the  plaintiff 
in  this  case  asks  the  court,  through  a  receiver,  to  bore  the  well  which 
the  lessee  was  required  to  bore  within  90  days  from  the  date  of 
execution  of  the  instrument  under  which  he  claims.  The  only  con- 
sideration which  moved  the  lessor  to  grant  the  lease  was  the  pros- 
pective royalties  from  oil  and  gas,  which  could  come  only  if  the 
lessee  complied  with  the  terms  of  this  proviso  that  required  the 
boring  of  a  well ;  for,  while  the  sum  of  one  dollar  is  technically  a 
valuable,  it  is  only  a  nominal,  consideration.  If  the  contention  of 
the  plaintiff  is  correct,  the  lessee,  Hodges,  or  his  assigns,  could 
have  waited  the  full  term  of  five  years  without  expending  one  dollar 
or  moving  a  hand  for  the  development  of  the  leased  property,  mean- 
time tying  the  hands  of  the  owner  of  the  land,  forbidding  him  to 
make  arrangements  with  any  other  persons  for  the  explorations 
which  the  lessee  undertook  to  make,  and  perhaps  suffering  irrepar- 
able injury  from  the  drainage  of  his  oil  and  gas.  This  is  the  con- 
tract which  a  court  of  equity  is  asked  to  enforce.  It  is  a  short  view 
of  the  range  of  equitable  principles.     "     *     * 

In  construing  this  agreement  in  the  light  of  all  the  facts  surround- 
ing contracts  of  this  nature,  and  of  the  considerations  moving  the 
grantor  in  its  execution,  we  have  no  difficulty  in  determining  that 
the  boring  of  a  well  by  the  grantee  was  the  whole  consideration  of 
the  lease,  that  nonperformance  went  to  the  entire  substance  of  the 
contract,  that  the  word  "provided"  is  an  apt  word  of  condition,  that 
the  grantee  did  not,  and  at  the  time  he  procured  the  lease  did  not 
intend  to,  comply  with  the  condition  which  was  a  condition  precedent 
to  the  vesting  of  any  title  in  the  leased  lands.  In  cases  of  conditions 
precedent,  the  consideration  is  the  performance  of  the  thing  stipu- 
lated to  be  done,  not  the  promise. 

But  it  is  contended  by  the  appellee  that  the  clause  providing  a 
forfeit  of  $50  for  failure  to  bore  the  well  within  90  days  provides 
full  compensation  for  failure  to  perform  the  condition.  As  a  mat- 
ter of  fact,  the  $50  was  not  paid  or  legally  tendered ;  but,  inasmuch 
as  the  grantor  had  declared  a  purpose  not  to  receive  the  forfeit 
money,  it  will  be  treated  as  if  it  had  been  tendered.  The  question 
whether  a  sum  of  money  stipulated  to  be  paid  is  a  penalty  or  liqui- 
dated damages  is  sometimes  difficult  of  determination,  there  being 
no  criterion  of  universal  application.  It  depends  upon  a  construc- 
tion of  the  whole  instrument,  the  intention  of  the  parties,  the  nature 
of  the  act  to  be  performed,  and  the  consequences  which  would  nat- 
urally flow  from  its  nonperformance.  In  many  of  the  cases  where 
oil  leases  have  come  before  the  courts,  the  doing  of  a  certain  thing, 
or  the  payment  of  rental  in  lieu  thereof,  is  stipulated  in  the  contract 
in  a  way  that  justifies  the  conclusion  that  the  parties  have  provided 
exact  and  just  compensation  by  way  of  liquidated  damages  for  fail- 
ure of  performance  in  contracts,  where  parties  stipulate  in  the  alter- 


PROPERTY    RIGHTS    OF   LESSEES.  639 

native,  and  are  free  to  choose.  But  where  consequences  Hkely  to 
follow  nonperformance  are  not  measurable  by  any  exact  pecuniary 
standard,  and  the  probable  damage  is  out  of  all  proportion  to  the 
amount  agreed  to  be  paid,  this  sum  should  be  considered  a  penalty ; 
and  such  we  hold  it  to  be  in  this  case,  where  the  sum  of  $50  is 
stated  to  be  a  forfeiture.  It  is  in  the  nature  of  a  security  for  the 
performance,  and  cannot  be  held  to  be  liquidated  damages  for  non- 
performance.    ''"     *     * 

The  governing  principle  in  all  oil  leases  of  the  character  under 
consideration  is  that  the  discovery  and  production  of  oil  is  a  condi- 
tion precedent  to  the  continuance  or  vesting  of  any  estate  in  the  de- 
mised premises ;  that  such  leases  vest  no  present  title  in  the  lessee, 
and  if,  at  any  time,  the  lessee  has  the  option  to  suspend  operations, 
the  lease  is  no  longer  binding  on  the  lessor  because  of  want  of  mu- 
tuality ;  and,  where  the  only  consideration  is  prospective  royalty  to 
come  from  exploration  and  development,  failure  to  explore  and  de- 
velop renders  the  agreement  a  mere  nudum  pactum,  and  works  a 
forfeiture  of  the  lease,  for  it  is  of  the  very  essence  of  the  contract 
that  work  should  be  done.  And,  the  smaller  the  tract  of  land,  the 
more  imperative  is  the  need  for  prompt  and  efficient  drilling;  for 
oil  operations  cumber  the  land,  rendering  it  unavailable  for  agri- 
cultural purposes.  The  landowner  is  entitled  to  his  royalty  as 
promptly  as  it  can  be  had.  The  danger  of  drainage  from  his  small 
holding  is  increased  by  delay,  and  the  resulting  damage,  not  being 
susceptible  of  pecuniary  measurement,  is  therefore  not  compensable. 
No  such  lease  should  be  so  construed  as  to  enable  the  lessee  who  has 
paid  no  consideration  to  hold  it  merely  for  speculative  purposes, 
without  doing  what  he  stipulated  to  do,  and  what  was  clearly  in  the 
contemplation  of  the  lessor  when  he  entered  into  the  agreement. 

Leaving  out  the  proviso  which  bound  the  lessee  to  diligent  search 
and  development,  there  is  nothing  in  this  lease  which  bound  him  to 
do  anything  whatever.  The  proof  is  clear  that  he  never  intended 
to  drill  the  well  within  the  time  stipulated.  This  proviso  was  writ- 
ten by  the  lessee  evidently  for  purposes  of  deception.  He  knew  that 
the  object  of  the  lessor  was  to  secure  diligent  search  for  oil,  and  he 
was  "keeping  tlie  word  of  promise  to  the  ear,  and  breaking  it  to  the 
hope"  ;  skillfully  turning  it  into  a  mere  speculative  lease,  binding 
the  lessor  and  leaving  himself  free.  It  would  be  unconscionable  to 
hold  the  lessor  bound.  "Law,  as  a  science,  would  be  unworthy  of 
the  name,  if  it  did  not,  to  some  extent,  provide  the  means  of  prevent- 
ing the  mischiefs  of  improvidence,  rashness,  blind  confidence,  and 
credulity,  on  one  side,  and  a  gross  violation  of  the  principles  of 
morals  and  conscience,  on  the  other."    Story,  Eq.  Jur.  §  13 16. 

In  Oil  Co.  V.  Marbury,  91  U.  S.  593,  23  L.  Ed.  328,  the  facts  were, 
to  some  extent,  the  converse  of  those  here ;  but  Mr.  Justice  Miller 
comments  on  the  fluctuating  character  and  value  of  this  class  of 
property,  and  asserts  the  injustice  "of  permitting  one  holding  the 


640  OIL,    GAS    AND    OTHER    MINING    LEASES. 

right  to  assert  an  ownership  in  such  property  to  voluntarily  await 
the  event,  and  then  decide,  when  the  danger  which  is  over  has  been 
at  the  risk  of  another,  to  come  in  and  share  the  profit,"  and  referring 
to  the  distinction  between  real  estate,  whose  value  is  fixed,  says : 

"The  class  of  property  here  considered  is  subject  to  the  most  rapid,  fre- 
quent, and  violent  fluctuations  in  value  of  anything  known  as  property,  and 
requires  prompt  action  in  all  who  hold  an  option  whether  they  will  share  its 
risks  or  stand  clear  of  them,  [and  that]  no  delay  for  the  purpose  of  enabling 
the  defrauded  party  to  speculate  upon  the  chances  which  the  future  may  give 
him  of  deciding  profitably  for  himself  whether  he  will  abide  by  his  bargain  or 
rescind  it  is  allowed  in  a  court  of  equity." 

In  a  case  like  this  no  judicial  proceeding  was  necessary  to  avoid 
the  lease.  The  landlord,  never  having  been  out  of  possession,  can- 
not re-enter  upon  himself ;  and  it  was  held  in  Guffy  v.  Hukill,  34  W. 
Va.  49,  II  S.  E.  754,  8  L.  R.  A.  759,  and  in  many  other  cases,  that 
any  unequivocally  expressed  election  to  avoid,  as  by  giving  a  new 
lease,  avoids  the  one  preceding.     *     *     * 

We  are  of  opinion,  upon  the  whole  case,  that  the  exploration  for 
and  development  of  oil  and  gas  was  the  sole  consideration  for  this 
lease ;  that  the  proviso  rec^uiring  the  boring  of  a  well  within  90  days 
was  a  condition  precedent  to  the  vesting  of  any  interest  in  the  lessee, 
and  that  the  forfeiture  of  $50  was  intended  merely  as  a  penalty  to 
secure  the  drilling  of  the  well,  and,  if  paid,  would  have  been  merely 
compensation  to  the  landowner  for  the  right  of  the  lessee  to  posses- 
sion during  the  90  days,  and  such  payment  would  not  be  so  far  a 
compliance  with  the  conditions  of  the  lease  as  to  vest  in  the  lessee  a 
title  in  the  leased  premises  for  the  period  of  five  years  ;  that  after 
the  expiration  of  90  days  from  the  date  of  the  lease,  there  being  no 
provision  therein  for  any  work  to  be  done  by  the  lessee  in  the  de- 
velopment of  the  property,  which  was  the  sole  consideration  there- 
for, the  lessor  had  the  option  to  avoid  it ;  that  the  inaction  of  the 
lessee  during  a  period  of  8  months,  while  operations  were  being 
commenced  on  adjoining  land,  calculated  to  drain  the  land  of  the 
lessor  and  irreparably  injure  him,  fully  justified  his  avoidance  of 
the  lease ;  and  that  the  lease  to  Huggins  and  his  associates  was  an 
unequivocal  declaration  of  his  intention  to  avoid  it,  and  terminated 
any  inchoate  right  which  Hodges  could  claim  thereunder.  The  de- 
cree of  the  circuit  court  is  reversed,  and  the  case  remanded,  with 
instructions  to  restore  the  leased  premises  to  the  appellants,  and 
that  the  receiver  be  directed  to  turn  over  to  them  any  moneys  in 
his  hands  as  the  result  of  his  operations,  after  deducting  whatever 
sum  may  have  been  actually  and  necessarily  expended  by  him  in 
the  development  of  the  same,  and  that  the  bill  be  dismissed,  with 
costs. 


PROPERTY    RIGHTS    OF    LESSEES.  64I 

BROWN  ET  AL.  V.  FOWLER  et  al. 

SAME  V.  OHIO  OIL  CO.  et  al. 

1902.     Supreme  Court  of  Ohio.    65  Ohio  St.  507,  63  N.  E.  'j6. 

Actions  by  one  Brown  and  others  against  Catherine  Fowler  and 
others  and  against  the  Ohio  Oil  Company  and  others.  The  actions 
were  heard  together,  and  from  judgments  in  favor  of  the  defendants 
plaintiffs  bring  error.     Affirmed. 

Burket,  J. 2 — As  the  terms  of  the  two  leases  are  the  same  except 
the  paragraphs  as  to  drilling  the  first  well,  the  Fowler  lease  will  be 
first  considered  in  full,  and  then  the  Minard  lease  in  so  far  as  the 
paragraph  as  to  drilling  the  first  well  causes  that  lease  to  differ  from 
the  Fowler  lease.  It  will  be  noticed  by  a  careful  examination  of  the 
Fowler  lease  that  it  has  a  granting  clause,  a  habendum  clause,  a  con- 
dition subsequent  or  defeasance  clause,  and  a  surrender  clause.  The 
price  paid  or  consideration  for  all  these  clauses — that  is,  for  the 
whole  lease — was  $1,  the  receipt  of  which  is  acknowledged  in  the 
lease.  The  instrument  grants  the  oil  and  gas,  and  also  the  land  for 
the  purpose  of  operating  thereon  for  said  oil  and  gas,  and  it  is 
therefore  a  lease,  and  not  merely  a  license.  Oil  Co.  v.  Crawford,  55 
Ohio  St.  161,  44  N.  E.  1093,  34  L.  R.  A.  62.  The  length  of  tim*- 
for  which  the  grant  is  made  is  not  stated  in  the  granting  clause,  but, 
as  was  held  in  Martin  v.  Jones,  62  Ohio  St.  519,  525,  57  N.  E.  238, 
the  habendum  clause  makes  definite  the  granting  clause  as  to  time. 
The  words  in  the  habendum  clause  are :  "To  have  and  to  hold  the 
same  unto  the  lessee,  his  heirs  and  assigns,  for  the  term  of  two  years 
from  the  date  hereof,  and  as  long  thereafter  as  oil  or  gas  is  found  in 
paying  quantities  thereon,  not  exceeding  in  the  whole  the  term  of 
twenty-five  years  from  the  date  hereof."  This  clause  means  that  the 
term  of  the  lease  is  limited  to  two  years,  but  that  if,  within  the  two 
years,  oil  or  gas  shall  be  found,  then  the  lease  shall  run  as  much 
longer  thereafter  as  oil  or  gas  shall  be  found  in  paying  quantities; 
but,  if  no  oil  or  gas  shall  be  found  within  the  two  years,  the  lease 
shall,  at  the  end  of  the  two  years,  terminate,  not  by  forfeiture,  but 
by  expiration  of  term  ;  and  after  the  expiration  of  said  two  years  no 
further  drilling  can  be  done  under  the  lease ;  and,  even  if  oil  or 
gas  or  both  shall  be  found  within  the  two  years,  the  whole  term  of 
the  lease  must  terminate  at  the  end  of  twenty-five  years  from  the 
date  of  the  lease.  Detlor  v.  Holland,  57  Ohio  St.  492.  49  N.  E.  690, 
40  L.  R.  A.  266.  So  that  by  the  aid  given  by  the  habendum  clause 
to  the  granting  clause  the  length  of  the  term  of  the  lease  is  settled 
and  definitely  fixed. 

After  the  length  of  the  term  of  the  lease  is  thus  definitely  and 

'  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 
41 — Mining  Law 


642  OIL,    GAS    AND   OTHER    MINING    LEASES. 

certainly  settled,  comes  the  condition  subsequent  or  defeasance 
clause,  which  says :  "In  case  no  well  shall  be  drilled  on  said  premises 
w  ithin  twelve  months  from  the  date  thereof,  this  lease  shall  become 
null  and  void,  unless  the  lessee  shall  pay  for  the  further  delay  at  the 
rate  of  one  dollar  per  acre  at  or  before  the  end  of  each  year  there- 
after until  a  well  shall  be  drilled."  This  clause  clearly  means  that 
the  lease  may  be  made  to  terminate  in  less  time  than  two  years — 
that  is,  at  the  end  of  twelve  months — by  a  failure  to  drill  a  well  on 
the  premises  within  the  twelve  months,  but  that  the  lessee  may  pre- 
vent such  termination  of  the  lease  at  the  end  of  twelve  months  by 
paying  for  further  delay  at  the  rate  of  $1  per  acre  at  or  before  the 
end  of  each  year  thereafter  until  a  well  shall  be  drilled  ;  that  is,  the 
payment  must  be  made  at  or  before  the  end  of  the  second  year  of 
the  lease,  and  the  further  delay  cannot  be  beyond  the  term  of  two 
years,  fixed  as  the  lifetime  of  the  lease.  And  the  words  "until  a 
well  shall  be  drilled"  mean  until  a  well  shall  be  drilled  within  the 
tW'O  years,  the  term  of  the  lease.  So  that  this  clause  cannot  have 
the  effect,  in  any  event,  to  extend  the  lease  beyond  the  two  years 
definitely  and  certainly  fixed  in  the  habendum  clause.     *     *     * 

Next  comes  the  surrender  clause,  in  these  words  :  "It  is  agreed  that 
the  lessee  shall  have  the  right  at  any  time  to  surrender  this  lease  to 
lessor  for  cancellation,  after  which  all  payments  or  liabilities  to  accrue 
under  and  i3y  virtue  of  its  terms  shall  cease  and  determine,  and  the 
lease  become  absolutely  null  and  void."  It  is  urged  by  counsel  for 
defendants  in  error  in  both  cases  that  this,  in  legal  effect,  makes  the 
lessee  a  mere  tenant  at  will,— his  own  will, — and,  it  being  a  tenancy 
at  will  as  to  one  party  it  is  so  as  to  both,  and  that  the  lessor,  by  giv- 
ing the  second  lease,  exercised  her  will,  and  terminated  the  lease. 
It  is  conceded  that  a  tenancy  at  the  will  of  one  party  is  a  tenancy 
also  at  the  will  of  the  other.  But  this  lease  does  not  create  a  tenancy 
at  will.  Blackstone  defines  an  estate  at  will  as  follows :  "An  estate 
at  Vi'ill  is  where  lands  and  tenements  are  let  by  one  man  to  another 
to  have  and  to  hold  at  the  will  of  the  lessor."  2  Bl.  Comm.  145. 
This  definition  is  adopted  by  4  Kent.  Comm.  no,  and  by  writers 
generally,  but  it  has  been  so  extended  as  to  also  include  estates  at 
the  will  of  the  lessee.  Doe  v.  Richards,  4  Ind.  374.  The  land  under 
this  lease  was  not  let  to  have  and  to  hold  at  the  will  of  the  lessor, 
but,  on  the  contrary,  to  have  and  to  hold  for  the  term  of  two  years. 
The  term  of  two  years  is  definite  and  certain,  and  cannot  be  disre- 
garded in  the  construction  of  the  lease,  and  this  surrender  clause 
cannot  have  the  force  to  destroy  the  two-years  term  and  make  it  a 
tenancy  at  will.  The  term  of  two  years  certain  and  this  surrender 
clause  are  not  inconsistent.  Full  force  can  be  given  to  both.  This 
surrender  clause  is  an  option,  intended  to  enable  the  lessee  to  termin- 
ate the  lease  before  the  end  of  the  term  if  it  shall  appear  that  there 
is  no  oil  or  gas  in  that  territory.  Under  this  clause  the  lessee  can 
terminate  the  lease  before  the  end  of  the  term  by  surrendering  the 


PROPERTY    RIGHTS    OF    LESSEES.  643 

lease,  and  under  the  defeasance  clause  he  can  do  the  same  by  failing 
to  drill  a  well  and  failing  to  pay  for  further  delay.  The  right  to 
terminate  the  lease  in  either  of  said  ways  is  a  valuable  right  to  the 
lessee,  and  he  paid  for  both  by  paying  the  $1  mentioned  as  the  con- 
sideration for  the  whole  lease.  Such  options  in  contracts  are  sus- 
tained by  courts.  Thayer  v.  AUison,  109  111.  180;  Oil  Co.  v.  Craw- 
ford, 55  Ohio  St.  161,  44  N.  E.  1093,  34  L.  R.  A.  62.  The  error  of 
construing  a  condition  subsequent,  or  an  option,  as  creating  the  term 
of  the  lease,  when  that  has  been  created  by  the  granting  and  haben- 
dum clauses,  has  caused  many  decisions  to  be  rendered  whose  sound- 
ness may  well  be  doubted.  This  clause  gives  the  lessee  his  option, 
and  for  which  he  has  paid,  to  hold  the  lease  to  the  end  of  the  term, 
or  surrender  it  sooner.  It  is  always  the  right  of  a  person  holding 
an  option  for  which  he  has  paid  to  surrender  it  before  the  expira- 
tion of  the  time  or  to  hold  it  for  the  full  time ;  but  the  person  who 
gave  the  option  cannot  compel  a  surrender  before  the  expiration  of 
the  full  time. 

It  is  also  urged  by  counsel  for  defendants  in  error  in  both  cases 
that  the  lease  is  void  for  want  of  mutuality.  Granting  that  the  lease 
was  made  for  the  purpose  of  operating  thereon  for  oil  and  gas,  and 
that  an  exclusive  right  to  so  operate  was  granted  to  the  lessee,  there 
is  no  want  of  mutuality.  The  lessee  on  his  part  paid  $1,  of  which 
the  lessor  acknowledged  receipt,  and  the  lessee  on  his  part  made  the 
demise ;  and  because  the  lessor  has  performed  his  part  in  full,  and 
does  not  promise  to  do  anything  further,  it  is  claimed  that  there  is 
no  mutuality ;  the  claim  being  that  mutuality  requires  that  an  obliga- 
tion must  rest  on  each  party  to  do  or  permit  to  be  done  something 
in  consideration  of  the  act  or  promise  of  the  other.  This  is  too  nar- 
row a  definition  of  mutuality.  One  party  may  perform  his  part  in 
full  at  the  making  of  the  contract,  and  thereafter  have  nothing  to 
do  or  permit  to  be  done, — having  already  done  his  part ;  and  the 
other  party,  in  consideration  of  what  has  thus  been  done,  binds  him- 
self to  do  or  permit  to  be  done  something  in  behalf  of  the  party  who 
has  thus  fully  performed.  A  promise  to  perform  can  be  no  stronger 
than  performance  itself,  and,  where  one  party  promises  to  perform 
his  part  of  a  contract  and  the  other  performs  his  part  at  the  mak- 
ing of  the  contract,  both  are  bound,  and  there  is  mutuality.  The 
one  who  has  performed  is  bound  to  permit  his  performance  to  stand, 
and  the  one  who  has  not  performed  is  bound  to  perform  his  part ; 
so  that  both  are  mutually  bound.  Performance  on  part  of  one  will 
sustain  a  promise  to  perform  on  the  part  of  the  other.  Where  there 
is  no  performance  and  no  promise  to  perform  on  one  side,  a  promise 
to  perform  on  the  other  side  is  without  consideration  and  without 
mutuality,  and  such  a  contract  can  be  held  void  on  either  or  both 
grounds.  In  this  lease  the  lessee  paid  $1  for  the  lease  for  the  ex- 
clusive right  to  operate  for  oil  and  gas,  and  thereby  fully  performed 
his  side  of  the  contract ;  and  the  lessor  granted  that  right  under  the 


544  O^^'  ^^^    '"^^^   OTHER  MINING  LEASES. 

terms  and  conditions  of  the  lease,  and  thereby  a  contract  was  made ; 
and  the  party  on  one  side  received  the  $i  in  full,  and  the  party  on 
the  other  side  received  the  demise,  and  then  both  were  mutually 
bound,  and  both  had  to  trust  to  the  future  for  the  realization  of  the 
purpose  for  which  the  lease  was  made.  So  that  there  is  no  want 
of  mutuality,  and  in  that  respect  the  lease  is  valid. 

From  the  findings  of  fact  it  appears  that  no  well  was  drilled  on 
the  premises  in  the  Fowler  lease,  and  no  oil  produced,  within  two 
years  from  the  date  of  the  lease,  and  as  the  payment  deposited  in 
the  bank  on  the  ist  day  of  December,  1898,  had  only  the  effect  to 
keep  the  lease  alive  until  the  8th  day  of  December,  1898,  it  follows 
that  the  lease  terminated  on  that  day  by  reason  of  expiration  of  the 
term  of  two  years  expressed  in  the  lease,  and  that  from  and  after 
the  8th  day  of  December,  1898,  the  plaintiffs  in  error  had  no  right 
to  drill  upon  the  Fowler  lease,  or  occupy  the  lands  under  that  lease 
for  any  purpose.  This  disposes  of  the  controversy  as  to  the  Fowler 
lease,  and  what  is  said  above  as  to  the  granting  clause,  the  habendum 
clause,  and  the  surrender  clause  in  the  Fowler  lease  is  also  applicable 
to  the  Minard  lease,  because  as  to  those  matters  the  two  are  the 


same. 


5l= 


The  judgments  below  are  right,  and  are  affirmed. 

KELLY  V.  KEYS  et  al. 
1906.    Supreme  Court  of  Pennsylvania.  213  Pa.  295,  62  Atl.  911. 

Action  by  W.  C.  Kelly  against  A.  M.  Keys  and  others.  Judgment 
for  plaintiff,  and  defendants  appeal.     Reversed. 

Stewart,  J. — The  defendant  Keys,  being  the  owner  of  a  certain 
tract  of  land  in  Washington  county,  by  ins'trument  in  writing,  duly 
executed  and  acknowledged,  granted  to  Kelly,  the  plaintiff,  the  ex- 
clusive right  to  mine  and  produce  therefrom  petroleum  and  natural 
gas,  with  possession  of  so  much  of  the  land  as  might  be  necessary 
for  such  purposes,  for  a  term  of  two  years,  subject  to  certain  condi- 
tions and  stipulations  which  do  not  here  call  for  recital.  Kelly 
never  exercised  any  rights  under  the  grant,  and  never  entered  into 
possession  of  any  part  of  the  premises.  Subsequently  Keys,  claim- 
ing that  by  reason  of  a  default  Kelly  had  forfeited  his  rights  under 
the  grant,  conveyed  a  like  right  in  the  premises  to  C.  D.  Greenlee 
and  the  Southern  Oil  Company,  the  other  defendants,  who  proceeded 
to  explore  the  property  and  succeeded  in  producing  oil  therefrom  in 
paying  quantity.  Kelly,  averring  compliance  on  his  part  with  all 
the  conditions  and  stipulations  of  the  grant  under  which  he  claimed, 
and  denying  a  forfeiture,  brought  this  action  of  ejectment  against  the 
defendant  to  compel  surrender  of  possession  to  himself.   The  action 


PROPERTY    RIGHTS   OF   LESSEES.  645 

resulted  in  a  verdict  for  the  plaintiff,  subject  to  the  decision  of  the 
court  on  a  question  reserved,  viz.,  whether  ejectment  in  such  case 
would  lie.  Upon  consideration,  judgment  was  rendered  upon  the  re- 
served point  in  favor  of  the  plaintiff.  The  assignment  of  error  that 
relates  to  the  action  of  the  court  on  this  point  is  the  only  one  that 
calls  for  present  consideration. 

In  reaching  his  conclusion  on  the  point  reserved,  the  learned  judge 
gave  full  recognition  to  the  binding  authority  of  Funk  v.  Haldeman, 
53  Pa.  229,  and  the  cases  that  follow  it,  wherein  it  is  held  that  the 
grant  of  exclusive  privileges  to  go  on  land  for  the  purpose  of  pros- 
pecting for  oil,  the  grantor  to  receive  part  of  the  oil  mined,  as  in 
this  case,  does  not  vest  in  the  grantee  any  estate  in  the  land  or  oil, 
but  is  merely  a  license  or  grant  of  an  incorporeal  hereditament.  This 
court  has  found  frequent  occasion  to  assert  its  continued  adherence 
to  the  doctrine  of  these  cases.  Only  recently,  in  the  case  of  Hicks 
V.  American  Natural  Gas  Company,  207  Pa.  570,  57  Atl.  55,  65 
L.  R.  A.  209,  it  reasserted  it  without  qualification.  Once  it  was  de- 
termined that  the  subject  of  such  a  grant  was  an  incorporeal  here- 
ditament, and  not  an  estate  in  the  land  or  oil,  it  logically  and  neces- 
sarily resulted  that  it  would  not  support  an  action  in  ejectment.  And 
this  view  has  been  steadily  adhered  to.  In  no  case  has  ejectment 
been  sustained  under  such  a  grant,  except  where  possession  had  been 
acquired  by  the  grantee  and  he  had  been  wrongfully  disseised.  In 
the  present  case  disseisin  was  not,  and  could  not  be,  asserted.  Nor 
could  it  be  contended  that  the  instrument  under  which  Kelly  claimed, 
though  spoken  of  as  a  lease,  and  so  denominated  in  the  instrument 
itself,  is  in  point  of  fact  and  law  a  lease,  notwithstanding  it  allows 
possession  of  so  much  of  the  surface  of  the  premises  as  may  be  nec- 
essary to  conduct  mining  operations.  This  much  will  be  implied 
without  express  stipulation ;  and  the  stipulation,  being  expressed, 
in  no  way  distinguishes  this  from  the  cases  where  such  an  instru- 
ment is  held  to  be  merely  a  grant  or  license.  The  court  below  put 
no  other  construction  on  this,  so  long  as  it  concerned  no  one  but 
grantor  or  grantee ;  but  because  the  defendants,  holding  under  a 
subsequent  lease,  being  in  possession,  had  produced  and  were  pro- 
ducing oil  in  paying  quantity,  he  reached  the  conclusion  that  what 
had  been  the  grant  of  an  incorporeal  hereditament,  now  that  the  oil 
had  been  found  and  was  being  produced,  was  an  estate  in  the  land, 
since  oil  was  a  mineral,  and  therefore  part  of  the  land,  and  that, 
Kelly  being  entitled  to  be  put  in  possession  of  so  much  of  the  estate, 
ejectment  could  be  brought  for  such  purpose. 

This  line  of  argument  overlooks  the  very  consideration  on  which 
the  authorities  cited  rest.  In  no  case  is  it  held  that  the  grant  of  an 
exclusive  right  to  mine  for  and  produce  oil,  though  it  be  a  mineral, 
is  a  sale  of  the  oil  that  may  afterward  be  discovered.  When  under 
such  a  grant  oil  has  been  discovered,  it  is  the  grantee's  right  to  pro- 
duce it  and  sever  it  from  the  soil.     So  much  as  is  thus  severed  be- 


646  OIL,    GAS    AND    OTHER    MINING    LEASES. 

longs  to  the  parties  entitled  under  the  terms  of  the  grant,  not  as  any 
part  of  the  real  estate,  however,  but  as  a  chattel,  and  only  so  much 
as  is  produced  and  severed  passes  under  the  grant.  As  to  oil  not 
produced  there  is  no  change  of  property.  It  is  expressly  so  ruled 
in  Funk  v.  Haldeman,  53  Pa.  229 ;  and  the  same  ruling  was  repeated 
and  emphasized  in  the  case  next  following  on  the  same  subject. 
Dark  v.  Johnston,  55  Pa.  164,  93  Am.  Dec.  732.  These  were  the 
first  cases  in  which  grants  of  rights  to  explore  for  oil  were  consid- 
ered and  passed  upon  by  this  court.  The  rulings  therein  have  been 
steadily  and  consistently  followed.  In  this  connection  it  is  only  nec- 
essary to  refer  to  the  case  of  Union  Petroleum  Company  v.  Bliven 
Petroleum  Co.,  J2  Pa.  173,  where  the  grant  was  the  same  as  in  the 
present  case,  with  the  additional  fact  that  there,  as  here,  oil  had 
actually  been  discovered  and  was  being  produced,  and  Barnhart  v. 
Lockwood,  152  Pa.  82,  25  Atl.  237.  The  reason  for  the  rule  thus 
established,  is  to  be  found  in  the  peculiar  character  of  mineral  oil. 
This  is  very  clearly  indicated  in  the  earlier  cases,  where  the  distinc- 
tion is  drawn  between  minerals  which  are  fugacious  in  their  nature, 
such  as  water,  gas,  and  oil,  and  those  which  have  a  fixed  situs  and 
are  necessarily  part  of  the  land  ;  and  this  distinction  has  been  allowed 
with  controlling  significance  whenever  oil  in  situ  has  been  the  sub- 
ject of  the  dispute.  Both  rule  and  reason  are  against  the  theory  that 
prevailed  with  the  court  below,  to  the  effect  that,  the  mineral  once 
discovered,  all  that  was  in  situ  became  in  law  part  of  the  real  estate. 

With  the  rights  of  the  appellee  thus  defined  and  limited  by  the 
cases  cited  above,  it  is  manifest,  without  discussion,  that  he  is  in  no 
position  to  maintain  ejectment  for  the  property.  The  question  re- 
served was  to  this  very  point,  and  was  raised  in  the  first  point  sub- 
mitted by  the  defendant,  denying  plaintiff's  right  to  ejectment.  The 
latter  should  have  been  affirmed.  Its  refusal  is  the  subject  of  the 
eighth  assignment  of  error,  which  much  be  sustained.  It  is  unnec- 
essary to  consider  the  other  assignments  of  error. 

Judgment  reversed,  and  judgment  is  directed  to  be  entered  on 
the  point  reserved  in  favor  of  defendant  non  obstante  veredicto. 


FOWLER  V.  DELAPLAIN. 
1909.     Supreme  Court  of  Ohio.     79  Ohio  St.  279,  87  N.  E.  260. 

Action  by  one  Delaplain  against  one  Fowler,  judgment  for 
defendant  was  reversed  in  the  circuit  court,  and  he  brings  error. 
Affirmed. 

The  defendant  in  error  commenced  an  action  in  the  court  of  com- 
mon pleas  of  Monroe  county  to  recover  possession  of  certain  real 
property  situate  in  that  county,  and  for  damages  for  the  unlawful 


PROPERTY    RIGHTS    OF    LESSEES.  64/ 

detention  of  the  same.  On  the  trial  a  verdict  was  returned  in  favor 
of  the  plaintiff  in  error,  and  judgment  was  rendered  on  the  verdict. 
A  petition  in  error  havinp-  been  filed  in  the  circuit  court,  the  said 
court  reversed  the  judgment  of  the  court  of  common  pleas,  for  the 
reason  that  the  court  erred  in  admitting  testimony  on  the  part  of 
the  defendant  below  over  the  objection  of  the  plaintiff  below.  This 
proceeding  is  prosecuted  to  reverse  the  judgment  of  the  circuit 
court,  and  to  obtain  an  affirmance  of  the  judgment  of  the  court  of 
common  pleas. 

Davis,  J.* — *  *  *  However,  we  think  that  the  circuit  court 
[which  reversed  the  judgment  for  error  in  the  admission  of  evi- 
dence] might  safely  have  gone  much  farther.  One  of  the  as- 
signments of  error  in  that  court  was  that  the  court  of  common 
pleas  erred  in  overruling  the  demurrer  to  the  second  and  third 
defenses  of  the  defendant's  answer.  The  defendant's  second  de- 
fense met  the  assertion  of  the  plaintiff's  claim  of  title  and  right 
to  possession  by  alleging  that  the  plaintiff  acquired  title  by  de- 
vise, and  subject  to  all  the  burdens  which  existed  on  the  prop- 
erty at  the  death  of  the  testator,  and  that  the  defendant  was  placed 
in  possession  of  the  premises  in  controversy  by  the  testator,  who 
was  also  the  lessor  in  the  oil  lease,  under  an  oral  contract  that 
defendant  should  have  and  hold  possession  of  the  premises  so  long 
as  he  was  engaged  as  an  employe  of  the  parties  who  owned  the 
leasehold,  and  was  operating  the  same  for  oil  and  gas,  and  that 
the  defendant  was  in  possession  thereof  at  the  time  the  plaintiff 
became  seized,  and  that  under  this  oral  agreement,  and  with  knowl- 
edge on  part  of  the  plaintiff's  testator,  the  defendant  erected,  and 
has  occupied  until  now,  as  an  employe  of  the  owners  of  the  lease- 
hold, the  buildings  on  the  premises  in  controversy  in  this  action. 
The  substance  and  effect  of  this  defense  is  that  the  defendant  claims 
to  be  in  lawful  possession  of  the  disputed  premises  under  a  parol 
license  from  the  owner  to  himself,  and  not  under  the  oil  lease, 
which  was  granted  to  his  employers.  That  which  he  alleges  as  a 
contract  is  merely  a  permission,  without  consideration,  to  occupy 
and  use  the  premises  for  an  indefinite  time,  and  without  the  grant  of 
a  permanent  interest  in  the  land  of  any  kind  whatever.  ^  It  was 
neither  a  lease  nor  an  easement,  but  was  merely  an  oral  license  to 
occupy  for  a  temporary  purpose.  Being  a  Hcense  not  coupled  with 
an  interest  in  the  land,  it  is  revocable  at  any  time.  As  such,  it  was 
probably  revoked  by  the  licensor  when  he  devised  the  property  to 
the  plaintiff  below,  the  defendant  having  no  interest  in  the  land, 
and  certainly  it  was  revoked  by  the  death  of  the  licensor,  because, 
not  being  an  interest  running 'with  the  land,  the  permissive  right 
expired  with  him  who  gave  it  \  see  25  Cyc  651,  note,  61)  ;  and  it  was 

*  The  statement  of  facts  is  abbreviated  and  parts  of  the  opinion  are  omitted. 


648  OIL,    GAS    AND    OTHER    MINING    LEASES. 

again  revoked  by  the  plaintiff  below,  the  admitted  owner  of  the  legal 
title  to  the  premises. 

In  some  of  the  states,  and  heretofore  to  some  extent  in  this  state, 
equity  will  not  allow  an  executed  license  to  be  revoked.  This  is 
upon  the  ground  that  a  revocation  would  operate  as  a  surprise  and 
fraud  upon  the  licensee.  Probably  this  rule  has  never  been  applied 
unless  the  license  was  connected  with  an  attempted  grant  of  an 
interest  in  real  estate.  But  even  in  jurisdictions  where  it  prevails 
to  its  fullest  extent,  it  has  been  held  that  a  mere  naked  acquiescence, 
such  as  is  alleged  in  this  case,  in  the  construction  of  valuable  im- 
provements, or  the  expenditure  of  money,  on  the  faith  of  the  license, 
will  not  render  it  irrevocable.  Ewing  v.  Rhea,  37  Or.  583,  62  Pac. 
790,  52  L.  R.  A.  140,  82  Am.  St.  Rep.  783 ;  Kipp  &  Kendall  v.  Coe- 
nen  &  Bechtell,  55  Iowa,  63,  7  N.  W.  417.  And  see  Wilkins  v. 
Irvine,  33  Ohio  St.  138.  In  the  license  which  we  are  now  consider- 
ing the  licensor  did  not  undertake  to  do  anything,  nor  to  grant  any 
interest  in  the  land,  permanent  or  otherwise.  The  licensee  took  the 
premises  by  mere  sufferance,  and  took  possession  with  the  possibility 
that  the  license  might  be  revoked  at  any  time ;  and  any  expenditures 
or  improvements  which  he  may  have  made  under  such  conditions  he 
made  for  his  own  convenience,  and  at  his  own  risk.  It  scarcely 
needs  to  be  mentioned  that  if  this  were  an  unquestionable  case  of  an 
executed  license,  it  would  come  within  the  recent  ruling  of  this 
court  in  Yeager  et  al.  v.  Tuning  et  al.,  86  N.  E.  657.    *    *    * 

The  judgment  of  the  circuit  court  reversing  the  judgment  of  the 
court  of  common  pleas  is  affirmed.  The  cause  will  be  remanded  to 
the  court  of  common  pleas,  with  instructions  to  sustain  the  demurrer 
to  the  second  and  third  defenses  of  the  answer,  and  for  such  other 
proceedings  in  accord  with  this  opinion  as  are  authorized  by  law. 

Judgment  accordingly. 


BARNSDALL  v.  BRADFORD  GAS  CO. 

1909.     Supreme  Court  of  Pennsylvania. 
225  Pa.  338,  74  Atl.  207. 

Action  by  William  Barnsdall,  Jr.,  against  the  Bradford  Gas 
Company.  Judgment  for  defendant  non  obstante  veredicto,  and 
plaintiff  appeals.    Reversed. 

Argued  before  Brown,  Mestrezat,  Potter,  Elkin,  and  Stew- 
art, jj. 

Mestrezat,  J.^ — We  think  the  learned  court  below  was  in  error 
in   setting  aside  the  verdict   and   entering  judginent  non  obstante 

°  Parts  of  the  opinion  are  omitted. 


PROPERTY    RIGHTS    OF    LESSEES.  649 

veredicto  for  the  defendant.  The  praecipe  and  writ  show  this  case 
to  be  ejectment  for  the  recovery  of  lOO  acres  of  land  in  Hebron 
township,  Potter  county.  The  parties  claim  through  a  common 
source  of  title.  The  plaintiff's  title  rests  upon  what  is  known  as  a 
gas  and  oil  lease,  dated  November  8,  1906.    *    *    * 

Whether  an  agreement,  commonly  known  as  an  "oil  and  gas 
lease,"  creates  an  estate  or  interest  in  land,  or  is  a  mere  license  to 
enter  and  operate  for  those  minerals,  has  frequently  been  before  this 
court,  as  the  numerous  reported  decisions  attest.  An  examination 
of  the  cases  will  disclose  that  they  have  drawn  a  clearly  defined 
distinction  between  agreements  which  create  a  lease  of  the  land  for 
mineral  purposes  and  those  which  are  simply  a  license  giving  to  the 
licensee  authority  to  enter  and  operate  for  minerals.  While  this 
distinction  has  not  been  strictly  adhered  to  in  all  the  cases,  yet  it  is 
recognized  and  has  been  established  in  the  leading  cases  on  the 
subject  in  this  state,  and  is  sustained  by  text-writers.  It  is  well 
stated  in  27  Cyc.  690,  where  it  is  said :  "There  is  a  broad  distinction 
between  a  lease  of  a  mine,  under  which  the  lessee  enters  into  pos- 
session and  takes  an  estate  in  the  property,  and  a  license  to  work  the 
same  mine.  In  the  latter  case  the  licensee  has  no  permanent  interest, 
property,  or  estate  in  the  land  itself,  but  only  in  the  proceeds,  and 
in  such  proceeds  not  as  realty,  but  as  personal  property,  and  his  pos- 
session is  the  possession  of  the  owner.  A  contract  simply  giving  a 
right  to  take  ore  from  a  mine,  no  interest  or  estate  being  granted, 
confers  a  mere  license,  and  the  licensee  acquires  no  right  to  the  ore 
until  he  separates  it  from  the  freehold.  But  an  instrument  that 
demises  and  leases  certain  lands  for  mining  purposes  only,  for  a 
designated  term  of  years,  at  a  fixed  rent,  and  giving  the  right  to 
erect  all  necessary  buildings,  etc.,  is  a  lease,  and  not  merely  a  mining 
license." 

The  language  of  the  agreement  in  the  case  at  bar  shows  it  to  be 
a  lease,  conveying  an  interest  in  land,  a  corporeal  and  not  an  incor- 
poreal hereditament.  The  lessor  does,  in  the  language  of  the  lease, 
"grant,  demise,  lease  and  let  unto  the  said  party  of  the  second  part 
*  *  *  all  that  certain  tract  of  land  *  *  *  containing  one  hun- 
dred acres,  *  *  *  for  the  sole  and  only  purpose  of  mining  and 
operating  for  oil,  gas  and  other  minerals  and  of  laying  pipe  lines 
and  of  building  tanks,  stations  and  structures  thereon  to  take  care 
of  the  said  products."  It  will  thus  be  seen,  by  this  transposition  of 
the  language  of  the  lease,  that  the  land  itself  is  granted  and  demised, 
and  not  simply  the  right  to  enter  upon  and  prospect  and  operate  for 
oil  or  gas.  It  is  not  simply  a  privilege  given  to  the  lessee  to  use 
the  premises  for  mining  purposes,  but  the  land  itself  is  demised  with 
the  right  to  obtain  the  minerals  therein.  By  the  agreement  the 
exclusive  right  to  take  and  appropriate  all  the  minerals  is  conveyed, 
and  during  the  term  of  the  lease  the  lessor  has  no  right  to  enter  and 
operate  for  oil  or  gas.     The  title  to  the  oil  except  the  one-eighth 


650  OIL,    GAS    AND    OTHER    MINING    LEASES. 

thereof  is  vested  in  the  lessee,  as  is  also  the  title  to  the  gas  and  other 
minerals  in  the  land.     Under  the  rule  of  construction  established, 
not  only  in  other  jurisdictions,  but  by  our  own  cases,  therefore,  the 
agreement  creates  a  corporeal  interest  in  the  lessee  in  the  demised 
premises,  and  is  not  merely  a  license  to  enter  and  operate  for  oil 
and    gas.      In    Chicago   &   Allegheny    Oil   &    Mining   Company   v. 
United  States  Petroleum  Company,  57  Pa.  83,  the  lease  contained 
this  language:  "The  party  of  the  first  part  hereby  covenants  and 
agrees  to  lease  to  the  party  of  the  second  part,  his  heirs  and  assigns, 
all  his  right,  title,  interest  and  claim  in  and  to  all  that  certain  piece 
or  parcel   of   land,    *    *    *    the   said   party  of  the   second  part  to 
have  the  sole  and  exclusive  right  to  bore  or  dig  for  oil  on  said  lands 
and  gather  and  collect  the  same  therefrom,  for  the  term  of  twenty 
years  from  the  date  hereof."     Mr.  Justice  Agnew,  in  the  opinion  of 
the  court,  speaking  of  the  character  of  the  agreement,  says   (page 
90)  :  "The  agreement      *    *    *    jg  manifestly  a  lease  for  years  of  a 
corporeal  tenement  with  an  added  exclusive  right  to  bore  for,  obtain, 
and  take  the  oil  found,  returning  as  rent  one-fourth  of  the  product  to 
the  lessor."     In  Titusville  Novelty  Iron  Works'  Appeal,  -j-j  Pa.  103, 
Mr.  Justice  Gordon  delivering  the  opinion  and  speaking  of  a  lease- 
hold on  which  were  a  house  and  an  oil  well,  said  (page  107)  :  "A 
lease  of  land  during  the  term  is  as  fixed  as  the  land  itself,  for  it  can 
only  be  used  upon"  the  land  out  of  which  it  arises.     It  is  nothing 
more  or  less  than  a  right  to  use  a  freehold  for  the  term  mentioned 
in  the  lease.     It  is  therefore  an  estate  in  land."     In  Kitchen  v. 
Smith,    loi    Pa.   452,   the   land   was   leased   for    15   years   "for  all 
purposes  necessary  to  develop  the  same  by  procuring  oil  and  taking 
it  therefrom,  together  with  a  right  to  put  up  and  keep  tanks  thereon 
for  its  storage."    As  to  the  estate  created  by  the  lease,  Mr.  Justice 
Trunkey,  delivering  the  opinion,  says  (page  457)  :  "The  lease  vested 
in  the  lessees  and  their  assigns  the  exclusive  possession  of  the  land 
for  the  purpose  of  searching  for,  producing,  storing,  and  transport- 
ing oil.    They  had  the  right  to  possession  of  so  much  of  the  land  as 
was  necessary  for  said  purpose,  and  were  in  the  actual  possession  of 
a  considerable  part,  if  not  the  whole.     Their  right  was  not  a  mere 
license."     In  Duke  v.  Hague,  107  Pa.  57,  the  contract  granted  and 
leased  "the  exclusive  right  for  the  sole  and  only  purpose  of  mining 
and  excavating  for  petroleum,  rock  or  carbon  oil,  all  that  certain 
tract  of  land,    *    *    *    to  have  and  to  hold  the  said  premises  ex- 
clusively for  the  said  purpose  only,  unto  the  said  party  of  the  second 
part,    *    *    *    for  and  during  the  full  term  of  twenty  years."     The 
trial  court  held  that  the  lease  created  an  interest  in  the  land.     Mr. 
Justice  Trunkey  in  affirming  the  judgment  said   (page  66)  :  "The 
purpose  of  the  lease  is  first  named;  but  that  the  land  is  leased  for 
that  purpose  is  as  plain  as  if  a  description  of  the  land  preceded  the 
clause  restricting  its  use.    *    *    *    A  portion  of  the  oil  that  may  be 
produced  is  reserved  as  rent  or  royalty.     Failure  of  the  lessee  to 


PROPERTY    RIGHTS    OF    LESSEES.  65 1 

perform  his  covenants  will  avoid  the  lease.  Notwithstanding  these 
stipulations,  the  lessee  is  vested  with  an  interest  in  the  land.  His 
interest  is  that  of  a  tenant  for  years  for  the  purpose  of  mining.  He 
has  an  absolute  right  of  possession  of  all  the  surface  necessary,  and 
no  one  else  can  rightfully  take  out  oil  during  the  term,  save  under 
him.  The  whole  of  the  oil,  or  only  a  part,  may  be  taken  under  the 
lease ;  but  whatever  shall  be  taken  is  of  the  substance  of  the  realty. 
He  is  not  an  absolute  owner  of  the  whole  of  the  oil,  as  he  would 
be  were  all  the  oil  in  place  conveyed  to  him  in  fee."  In  Brown  v. 
Beecher,  120  Pa.  590,  603,  15  Atl.  608,  609,  the  land  itself  was 
demised  "with  the  sole  and  exclusive  right  and  privilege,  during  said 
period,  of  digging  and  boring  for  oil  and  other  minerals  and  collect- 
ing the  same  therefrom."  Mr.  Justice  Clark  in  delivering  the  opin- 
ion said:  "As  to  the  legal  force  and  effect  of  this  right  there  can, 
we  think,  be  no  doubt.  It  conveyed  an  interest  in  the  land.  In  this 
respect  it  is  distinguished  from  a  license."  Many  other  cases  to  the 
same  effect  might  be  cited ;  but  these  are  sufficient  to  show  that  the 
agreement  between  the  plaintiff  and  his  lessor  was  a  lease,  conveying 
an  interest  in  the  land,  and  was  not  a  license  to  enter  upon  the 
land  and  operate  for  mining  purposes.  In  the  last  case  cited,  the 
decisions  referred  to  above  are  distinguished  from  Funk  v.  Halde- 
man,  53  Pa.  229,  and  kindred  cases  by  Mr.  Justice  Clark  in  the 
following  language  (page  603  of  120  Pa.,  page  608  of  15  Atl.)  : 
"The  contract  of  February  3,  1882,  between  Cornon  and  Marsh, 
is  not  a  mere  license,  as  in  Funk  v.  Haldeman,  53  Pa.  229,  for  in 
that  case  the  words  of  the  grant  amounted  neither  to  a  lease  nor 
a  sale  of  the  land,  nor  of  any  of  the  minerals  in  the  land.  Funk's 
right  was  therefore  declared  to  be  a  license  to  work  the  land  for 
minerals,  a  license  coupled  with  an  interest  which  the  licensor 
could  revoke." 

The  defendant  contends  that,  conceding  the  contract  in  question 
to  be  a  lease  and  not  a  license,  the  plaintiff  cannot  maintain  eject- 
ment, as  he  had  not  entered  into  possession  of  the  premises.  We  are 
aware  of  the  rule  at  common  law  which  in  the  case  of  an  ordinary 
lease  requires  the  lessee  to  have  been  in  possession  of  the  premises  be- 
fore he  can  maintain  ejectment  against  any  one  who  had  ousted  him. 
That  is  the  rule  recognized  and  followed  in  this  state  where  real 
property  is  demised  for  the  purpose  of  occupancy  and  use  by  the 
tenant ;  but  we  are  not  disposed  to  enforce  it  in  cases  like  the  pres- 
ent, where  by  the  contract  the  lessee  is  granted  the  possession  of  the 
land  with  the  sole  and  exclusive  right  to  mine  and  remove  the  min- 
erals therein.  In  such  case,  while  the  tenant  is  regarded  as  a  lessee, 
yet  by  agreement  he  obtains  title  to  the  minerals  and  the  right  to  the 
possession  of  the  premises  for  removing  them.  As  said  in  Duke 
V.  Hague,  107  Pa.  57,  the  tenant  has  an  absolute  right  of  possession 
of  all  the  surface  necessary  to  enable  him  to  drill  and  remove  the 
oil,  and  no  one  else  can  rightly  take  out  oil  during  the  term,  save 


652  OIL,    GAS    AND    OTHER    MINING    LEASES. 

under  him.  The  contract  gives  him  the  right  to  the  oil  and  to  the 
possession  of  the  land  to  enable  him  to  remove  it.  As  also  said  in 
the  Duke  Case,  the  whole  of  the  oil,  or  only  a  part,  may  be  taken 
under  the  lease;  but  whatever  shall  be  taken  is  of  the  substance  of 
the  realty.  Having  acquired  by  the  contract  a  right  to  a  part  of  the 
realty,  the  law  should  give  the  lessee  an  adequate  remedy  to  enforce 
that  right.  Ejectment  is  the  proper  action  for  the  recovery  of  pos- 
session of  land  in  this  state.  It  is  a  possessory  action,  and,  if  a  party 
has  a  right  to  possession  and  the  immediate  right  to  enter,  he  may 
maintain  ejectment.  Here  the  lessee  has  the  right  to  the  possession 
of  the  premises,  the  immediate  right  to  enter,  and  the  right  to  take 
the  oil  therefrom  which  is  a  part  of  the  realty.  It  will  be  observed 
that  the  lessee  has  not  simply  the  right  to  the  possession  of  the  prem- 
ises, but  also  the  title  to  the  oil,  or  such  part  thereof  as  he  may  be 
able  to  remove  during  his  tenancy.    *    *    * 

This  is  not  a  contest  between  the  lessor  and  the  lessee  for  the  pos- 
session of  the  premises.  The  lessor  concedes  to  the  lessee  the  right 
to  the  oil  and  to  the  possession  of  the  premises  for  the  purpose  of 
removing  it.  This  action  is  by  the  lessee  against  a  third  party  who 
claims  adversely  to  the  lessor,  and  we  think  he  can  maintain  eject- 
ment, which  is  the  only  action  that  will  afford  him  an  adequate 
remedy  for  his  alleged  injuries.    *    *    * 

The  judgment  is  reversed,  and  the  court  below  is  directed  to  enter 
judgment  on  the  verdict. 


GRACIOSA  OIL  CO.  v.  SANTA  BARBARA  COUNTY. 
1909.     Supreme  Court  of  California.     155  Cal.  140,  99  Pac.  483. 

Action  by  the  Graciosa  Oil  Company  against  the  County  of  Santa 
Barbara.   Judgment  for  plaintiff,  and  defendant  appeals.    Reversed. 

Shaw,  J. — This  is  an  action  to  recover  taxes  assessed  against 
plaintiff  by  defendant  and  paid  under  protest,  claiming  that  the  as- 
sessment is  void. 

For  the  year  1904  plaintiff  was  assessed  for  taxes  as  the  owner  of 
property  described  on  the  assessment  roll  as  "Mining  rights  and  priv- 
ileges under  lease  made  by  L.  Harris  et  al.,  to  Graciosa  Oil  Co.  dated 
December  15,  1900,  and  recorded  in  [referring  to  the  record]  in  and 
to  the  following  described  lands  [describing  about  7,000  acres  of 
land  situated  in  Santa  Barbara  county]."  The  property  rights  thus 
described  were  assessed  at  the  value  of  $14,950,  and  on  this  assess- 
ment the  taxes  in  question  were  levied  and  paid.  For  the  same  year 
the  same  land  was  assessed  to  the  lessors  Harris  et  al.,  who  were  the 
owners  of  the  fee,  at  the  value  of  $66,150.  In  this  assessment  the 
land  was  described  by  sections  and  subdivisions,  precisely  a."  in  the 


PROPERTY    RIGHTS    OF    LESSEES.  653 

assessment  to  plaintiff,  wthout  mention  of  any  deduction  from  the 
valuation  thereof  or  of  any  exception  arising  out  of  any  quahfication, 
hmitation,  or  burden  upon  the  fee,  by  reason  of  the  separate  owner- 
ship of  the  mining  rights  and  privileges  referred  to  in  the  assessment 
to  plaintiff.  It  was  found  by  the  court,  however,  "that  the  mining 
rights  and  privileges  assessed  to  plaintiff'  was  not  included,  and  no 
part  of  them  was  included,  for  assessment  in  or  with  any  of  the 
property  as  assessed  to"  Harris  et  al.,  and  that  "the  said  assessment 
of  said  mining  rights  and  privileges  was  not  included  in  and  did  not 
include  the  assessment  of  any  property  assessed"  to  said  Harris  et  al. 
We  understand  this  finding  to  mean  that  there  was  no  double  assess- 
ment or  double  taxation  upon  the  same  property  or  interest  therein, 
and  we  assume  therefrom  that  the  valuation  of  the  entire  estate  and 
property  in  the  land,  as  made  by  the  assessor,  including  the  plain- 
tiff's rights  and  privileges,  would  exactly  equal  the  aggregate  amount 
of  all  the  assessments  involved.  The  court  below  in  its  conclusions 
of  law  held  the  assessment  to  plaintiff  void  solely  on  the  ground 
that  the  mining  rights  and  privileges  granted  by  the  lease  were  not 
taxable  or  assessable  separately  from  the  land  upon  which  they  were 
operated,  and  that  the  lease  did  not  create  a  separate  taxable  interest 
in  the  land,  or  justify  a  separate  assessment  of  the  right  granted, 
although  the  value  of  said  right  was  not  included  in  the  valuation 
of  the  land  in  the  assessment  to  the  landowners.  The  question  pre- 
sented and  argued  is  whether  or  not,  under  the  provisions  of  the 
Constitution  and  of  the  Political  Code  providing  for  taxation,  an 
assessment  of  the  mining  rights  and  privileges  of  plaintiff  under  the 
lease  referred  to  can  be  made  against  the  plaintiff,  separately  from, 
and  in  addition  to,  the  assessment  to  the  owners  of  the  fee  covering 
the  land  itself  but  not  including  said  rights  and  privileges,  or,  in  other 
words,  whether  or  not  the  respective  rights  of  the  plaintiff  and  of 
Harris  et  al.,  under  the  contract,  are  separately  assessable  to  each. 

The  contract  of  lease  was  dated  December  15,  1900.  The  parties 
of  the  first  part,  named  as  lessors,  were  Lawrence  Harris,  Eleanor 
Kate  Harris,  and  Harry  H.  Harris,  the  owners  of  the  land.  By 
this  contract  the  land  owners  granted  to  the  plaintiff,  party  of  the 
second  part,  "the  sole  and  exclusive  right  to  enter  upon  the  prem- 
ises (described)  for  the  purpose  and  to  mine  or  bore  wells,  or 
to  do  whatever  things  may  be  necessary  and  proper  for  the  develop- 
ment and  extraction  upon  said  premises  of  petroleum,  and  other 
hydro-carbon  substances,  by  whatever  name  known  and  natural  gas 
(asphaltum  included),"  together  with  the  privilege  of  conveying 
over  said  land  any  of  said  substances  produced  therefrom,  the  right 
to  use  the  water  of  the  streams  thereon  so  far  as  needed  in  said 
business,  and  of  placing  and  maintaining  on  the  premises  "all  struc- 
tures and  appliances  necessary  and  useful  for  the  objects  of  the 
lease  |    *    *    *    to  have  and  to  hold  the  said  premises  and  privileges 


654  OIL,    GAS    AND    OTHER    MINING    LEASES. 

with  the  appurtenances  for  the  said  purposes  unto  the  said  party  of 
the  second  part,  its  successors  or  assigns,  from  and  after  the  date 
hereof  ■■'-  ■'"  *  for  and  during  the  whole  period  of  twenty  years, 
unless  otherwise  terminated  by  the  party  of  the  second  part  [plain- 
tiff?], for  failure  to  comply  with  the  terms  of  this  lease,"  provided 
that,  if  any  wells  on  the  premises  were  then  producing  oil,  such 
wells  might  be  retained  by  the  plaintiff  and  deepened  and  operated 
thereafter  so  long  as  they  continued  to  produce.  It  further  provided 
that  the  lessee  should  begin  development  work  within  six  months 
from  the  date  of  the  lease  and  prosecute  the  same  continuously  in 
good  faith  to  success  or  abandonment,  but  that  it  should  have  the 
right  at  its  option  to  abandon  the  lease  at  any  time  that  it  deemed  it 
unprofitable  to  hold  or  operate  and  that  the  lease  should  thereupon 
become  void.  And  further  that,  "in  the  event  that  oil  is  found,  the 
lessee  agrees  to  deliver  or  pay  as  rent  or  royalty  to  the  said  lessor 
*  *  *  the  one-tenth  part  or  share  of  so  much  of  all  the  crude  oil 
of  petroleum,  naptha,  or  maltha  which  may  be  produced  and  saved 
by  the  lessor  from  said  wells  and  operations  on  said  premises,"  not 
including  that  required  by  the  plaintiff  for  fuel  in  the  mining  opera- 
tons. 

The  contention  of  the  respondent  is  that  there  can  be  but  one 
assessment  of  these  lands,  that  the  assessment  to  the  Harrises  covers 
and  includes  all  other  interests,  and  that,  after  having  made  that 
assessment,  excluding  the  value  of  plaintiff's  rights,  it  is  not  lawful 
to  separately  assess  ito  the  plaintiff  the  value  of  its  property  rights 
under  the  oil  lease.  It  is  no  doubt  the  general  rule,  regarding  land 
held  under  an  ordinary  lease  for  years  giving  the  right  to  hold  the 
rand  for  usufructuary  purposes  only,  that,  in  the  absence  of  contrary 
statutory  provisions,  there  is  to  be  but  one  assessment  of  the  entire 
estate  in  the  land,  and  that  this  assessment  should  include  the  value 
of  both  the  estate  for  years  and  of  the  remainder  or  reversion.  27 
Am.  &  Eng.  Ency.  of  Law,  678;  Chicago  v.  People,  153  111.  409,  38 
N.  E.  1075,  29  L.  R.  A.  69 ;  State  v.  Mississippi  B.  Co.,  109  Mo.  253, 
19  S.  W.  421.  Section  3887  of  the  Political  Code  recognized  this 
rule,  and  provided  that  "the  mortgagor  or  lessor  of  real  estate  is 
liable  for  the  taxes  thereon."  This  section  was  repealed  in  1880, 
but,  so  far  as  we  are  advised,  the  practice  of  making  but  one  assess- 
ment of  such  land  and  covering  therein  the  entire  value  of  all  in- 
terests and  estates  has  been  uniformly  followed  in  this  state,  since 
its  repeal  as  well  as  before.  With  respect  to  ordinary  leases  for 
usufructuary  purposes  there  are  good  reasons  for  this  practice. 
Except  when  held  for  speculative  purposes,  the  value  of  land  usually 
depends  on  the  value  of  the  use  and  occupation,  and  consists  of  a 
sum  equivalent  to  a  principal  which,  at  the  rate  of  interest  usual 
upon  safe  investments,  will  bring  a  net  annual  income  equal  to  that 
which  the  land  will  produce.    The   lessor  or  landowner  annually 


PROPERTY    RIGHTS    OF    LESSEES.  655 

receives  a  sum  as  rent  which  he  deems  the  equivalent  of  this  annual 
income,  or  of  the  value  of  the  use  of  the  land  to  him,  and  therefore 
he  enjoys  tlie  entire  beneficial  interest  in  the  premises,  including  the 
value  of  the  leasehold  as  well  as  of  the  fee.  There  are  exceptional 
cases,  due  to  the  sudden  rise  in  rental  values,  where  this  is  not  the 
case.  But  general  rules  in  regard  to  taxation  must  be  made  to  fit 
the  usual  conditions  and  not  the  exceptional  ones,  and  statutes  are 
to  be  construed  with  this  fact  in  view.  Since  1880  there  has  been 
no  express  statutory  provision  on  the  subject,  but  we  think  that,  as 
to  such  leasehold  estates,  the  owner  of  the  fee  may  fairly  be  deemed 
to  be  the  owner  of  the  whole  estate  for  purposes  of  taxation. 

There  are  material  differences  between  such  estates  for  years  and 
the  right  and  privilege  to  bore  for  and  extract  oil  held  by  the  plain- 
tiff under  its  oil  lease.  See  Thornton  on  Oil,  §§  47,  48.  The  plain- 
tiff, it  is  true,  does  not  own  an  absolute  present  title  to  the  oil  strata 
in  place.  Such  an  absolute  estate  in  an  underlying  stratum  may  be 
created  and  the  estate  of  the  owner  of  the  overlying  land  and  of  the 
owner  of  the  subterranean  stratum  will  be  as  distinct  and  separate  as 
is  the  ownership  of  respective  owners  of  two  adjoining  tracts  of  land. 
P'or  purposes  of  separate  ownership,  land  may  be  divided  horizontally 
as  well  as  superficially  and  vertically.  Jones  on  Real  Prop.  §  537 ; 
State  V.  Moore,  12  Cal.  70.  But  the  contract  in  question  vests  no 
present  title  in  a  stratum  in  place.  It  leaves  the  title  to  the  oil  in 
the  landowner  until  it  is  brought  to  the  surface.  The  rif^ht  vested 
in  plaintiff  is  an  estate  for  years,  so  far  as  necessary  for  the  purpose 
of  taking  oil  therefrom,  and  it  carries  with  it  the  right  to  extract 
the  oil  and  remove  it  from  the  premises.  This  right  constitutes,  for 
the  term  prescribed,  a  servitude  on  the  land  and  a  chattel  real  at 
common  law.  Civ.  Code,  §  801,  subd.  5  ;  section  802,  subd.  6;  Har- 
vey C.  &  C.  Co.  V.  Dillon,  59  W.  Va.  605,  53  S.  E.  928-93?.  and 
cases  there  cited;  Thornton  on  Oil  Leases,  §  51.  The  royalty  is 
frequently  fixed  before  the  discovery  of  oil.  usually  at  a  time  when 
the  existence  of  oil  in  profitable  quantities  is  a  matter  of  conjecture, 
and  without  regard  to  the  adjustment  between  the  parties  of  the 
burden  of  taxation  upon  the  respective  interests.  The  value  repre- 
sented by  the  royalty  is  ordinarily  very  small,  as  compared  to  that 
of  the  right  of  the  lessee.  After  the  discovery  of  oil  in  such  leased 
ground,  the  value  of  the  lessor's  real  interest  and  right  is  much 
less  than  it  would  be  if  he  had  the  whole  estate,  including  all  the 
oil  thus  discovered.  There  is  no  real  parallel  between  such  a  case 
and  that  of  a  lessor  under  an  ordinary  lease  for  occupation  and  use. 
It  is  well  known  that  such  leasehold  estates  or  interests  in  oil  strata, 
after  a  discovery  of  oil,  often  command  large  prices  in  the  market, 
out  of  all  proportion  to  the  value  of  the  interest  of  the  landowner 
receivine  only  the  royaltv  and  enjoying  the  use  only  for  other  pur- 
poses.    The  right  of  the  lessee  under  this  contract  is  more  than 


656  OIL,    GAS    AND    OTHER    MINING    LEASES. 

that  of  the  ordinary  lessee.  It  is  of  a  dififerent  character  and  for  a 
different  purpose.  He  has  no  right  at  all  to  the  usufruct  of  the  soil. 
His  right  extends  to  the  extraction  of  a  certain  part  of  the 
substance  of  the  land  itself,  to  its  permanent  separation  and  removal 
and  its  conversion  to  his  own  use.  The  whole  object  of  the  contract 
is  to  effect,  if  not  technically  a  sale  and  conveyance  of  a  substantial 
and  specific  part  of  the  land,  at  least  a  disposition  and  transfer  there- 
of to  another.  It  can  be  easily  seen  that  the  reasons  for  the  rule 
applicable  to  ordinary  leases  for  the  use  only  that  the  entire  estate 
should  be  assessed  to  the  lessor  are  entirely  lacking  here,  and  that 
it  would  be  a  more  just  and  reasonable  adjustment  of  the  burden  of 
taxation  of  such  oil  leases  to  assess  each  party  separately  with  the 
value  of  his  right  or  estate  in  the  land.  There  is  no  statute  forbid- 
ding it.  On  the  contrary,  we  think  the  statute  at  least  permits  it, 
if  it^  does  not  require  it.  If  it  is  permitted,  the  respondent  cannot 
complain.  The  suit  is  based  on  the  provisions  of  section  3804  of  the 
Political  Code  which  give  a  right  of  recovery  only  when  the  assess- 
ment is  absolutely  void.  Mere  irregularities  in  procedure  which  do 
not  invalidate  the  assessment  do  not  absolve  the  taxpayer  from  his 
obligation  to  pay  the  taxes  nor  give  him  any  right  to  recover  taxes 
already  paid. 

The  Political  Code  declares  that  all  property  must  be  assessed  to 
the  owner  thereof.  Section  3628.  It  must  be  conceded  that  the 
rights  and  privileges  of  the  plaintiff  under  this  lease  are  private 
property  and  are  taxable  in  some  form.  Const,  art.  13,  §  i.  The 
property  rights  thus  vested  in  plaintiff'  belonging  to  it,  and  not  to 
its  lessor.  It  cannot  with  good  reason  be  contended  that  the  value 
of  the  lessor's  estate,  including  the  value  of  the  right  to  the  royalty 
in  the  oil  produced,  embraces,  covers  or  represents  the  value  of  the 
plaintiff's  rights  and  privileges  in  the  land,  as  in  the  case  of  the 
lessor  in  an  ordinary  lease.  It  would  seem  to  follow  necessarily  that 
the  mining  rights  and  privileges  of  the  plaintiff  should  be  separately 
assessed  to  it  as  the  owner.  The  Code  recognizes  such  rights  and 
privileges  as  a  species  of  property  in  real  estate,  and  makes  sufficient 
provision  for  the  effective  enforcement  of  payment  of  taxes  thereon. 
Section  3617  provides  as  follows:  "The  term  'real  estate'  includes: 
(i)  The  possession  of,  claim  to,  ownership  of,  or  right  to  the  pos- 
session of  land.  (2)  All  mines,  minerals,  and  quarries  in  and  under 
the  land,  all  timber  belonging  to  individuals  or  corporations,  growing 
or  being  on  the  lands  of  the  United  States,  and  all  rights  and  priv- 
ileges appertaining  thereto."  The  strata  of  oil  or  oil-bearing  sand 
constitute,  as  we  have  seen,  a  part  of  the  land  which  may  be  the 
subject  of  separate  ownership.  There  may  be  a  separate  "claim  to" 
this  part  of  the  land,  as  well  as  a  separate  "claim  to"  a  portion  of 
the  surface.  A  "claim  to"  take  this  stratum  from  its  place  and  then 
convert  it  to  one's  own  use  may  well  be  termed  a  claim  to  land, 
although  not  accompanied  by  actual  physical  possession  of  the  sub- 


PROPERTY    RIGHTS    OF   LESSEES.  657 

terranean  deposit.  The  lease  also  gives  plaintiff  the  right  to  posses- 
sion of  the  surface  of  the  ground,  so  far  as  may  be  necessary  to 
enable  it  to  bore  for  and  extract  oil  and  as  an  incident  to  the  main 
purpose  of  the  contract.  The  plaintiff's  rights  may  therefore  in 
these  aspects  be  classed  as  real  estate  within  the  first  clause  of  sec- 
tion 3617.  The  oil  strata  also  constitute  "minerals  in  and  under  the 
land,"  and  the  riglUs  and  privileges  of  plaintiff  under  the  lease  are 
clearly  "rights  and  privileges  appertaining"  to  such  minerals,  and 
consequently  are  real  estate  within  the  meaning  of  the  second  sub- 
division aforesaid.  With  respect  to  enforcing  payment  of  the  taxes, 
section  3820  provides  that  "the  taxes  on  all  assessments  of  possession 
of,  claim  to,  or  right  to  the  possession  of  land,  shall  be  immediately 
due  and  payable  upon  assessment,  and  shall  be  collected  by  the  as- 
sessor as  provided  in  this  chapter."  Section  3821  declares  that  in 
the  cases  provided  for  in  section  3820  the  assessor  shall  at  the  time 
of  making  the  assessment,  or  at  any  time  before  the  first  Monday  of 
August  following,  collect  the  taxes  by  seizure  and  sale  of  any  per- 
sonal property  owned  by  the  person  against  whom  the  tax  is  assessed, 
or  if  no  personal  property  can  be  found,  then  the  assessor  may  collect 
the  taxes  by  seizure  and  sale  of  the  right  to  the  possession  of,  claim 
to,  or  right  to  the  possession  of,  the  land.  By  section  3822  the  pro- 
visions of  sections  3791  to  3796,  inclusive,  are  made  applicable  to 
such  seizure  and  sale.  These  sections  provide  for  a  sale  at  public 
auction  with  immediate  delivery  of  possession  to  th.e  purchaser.  The 
interests  of  plaintiff',  therefore,  come  within  the  precise  terms  of 
section  3820,  and,  if  no  personal  property  can  be  found  belonging 
to  the  owner,  the  assessor  could  forthwith  proceed  to  sell  the  rights 
of  the  plaintiff  in  the  land  and  in  the  oil  strata  and  give  immediate 
possession  thereof  to  the  purchaser.  Such  being  the  reasonable  con- 
struction of  the  statute,  it  is  to  be  presumed  that  it  was  intended  to 
have  that  effect  by  the  Legislature.  In  Bakersfield,  etc.,  Co.  v.  Kern 
Co.,  144  Cal.  154,  'jy  Pac.  892,  it  was  held  that  taxes  on  a  mining 
claim  were  collectible  immediately  under  these  sections.  There  is  a 
statement  in  the  opinion  in  that  case  that  payment  of  taxes  could 
not  be  enforced  by  a  sale  of  the  mining  claim.  But,  in  the  view  of 
the  facts  there  involved  and  stated,  this  evidently  means  no  more 
than  that  such  sale  could  not  be  made  as  there  threatened ;  that  is, 
without  previous  search  for  personal  property  and  a  seizure  and  sale 
thereof  if  found. 

It  may  be  urged  that  the  second  clause  of  section  3617,  above 
quoted,  refers  only  to  mines,  minerals,  quarries  and  timber  "grow- 
ing or  being  on  lands  of  the  United  States,"  and  to  rights  and 
privileges  in  such  lands  only,  and  has  no  application  at  all  to  lands 
held  in  private  ownership.  We  can  perceive  no  necessity  for  so 
narrow  a  construction.  It  is  a  matter  of  common  knowledge,_  and 
a  thing  recognized  by  legislative  enactments,  that  such  mining  rights 
and  privileges  may  exist  on  lands  belonging  to  the  state  of  California. 

42 — Mining  Law 


558  OIL,    GAS    AND    OTHER    MINING    LEASES. 

St.  1897,  p.  438,  c.  270,  §  3;  St.  1880,  p.  130,  c.  117;  St.  1873—4, 
p.  766,  c.  531.  The  lands  of  the  state  are  not  taxable.  If  the 
rights  and  privileges  of  the  miner  upon  such  lands  are  not  taxable 
to^the  person  in  possession,  they  would  entirely  escape  taxation. 
There  is  no  doubt  that  the  section  does  include  such  private  pos- 
sessory interests  and  rights  in  lands  of  the  United  States  and  au- 
thorizes the  assessment  thereof  as  private  property,  but  it  may  also 
reasonably  be  held  to  include  mines,  minerals,  and  quarries  in  and 
under  state  lands  and  lands  held  in  private  ownership,  and  rights 
and  privileges  appertaining  thereto,  and  to  authorize  the  separate 
assessment  of  such  property,  when  held  separately  from  the  owner- 
ship of  the  other  parts  of  the  land,  the  first  part  of  the  clause  re- 
ferring to  absolute  titles  to  such  minerals,  and  the  latter  part  to 
mining  rights  and  privileges,  such  as  those  of  the  plaintiff  in  this 
case.  In  view  of  the  manifest  propriety  and  justice  of  such  separate 
assessments,  a  broader  construction  should  be  adopted. 

The  court  below  erred  in  holding  that  the  mining  rights  and 
privileges  of  the  plaintiff  under  the  lease  could  not  be  lawfully 
taxed  to  plaintiff  separately  from  the  interest  or  estate  assessed  to 
the  landowners.  Upon  the  findings  made  judgment  should  have 
been  given  for  the  defendant. 

The  judgment  is  reversed. 


MOUND  CITY  BRICK  &  GAS  CO.  v.  GOODSPEED  GAS 

&  OIL  CO. 

1910.     Supreme  Court  of  Kansas.     83  Kan.  136,  109  Pac.  1002. 

Action  brought  by  the  Mound  City  Gas,  Coal  ^  Oil  Company, 
which  had  obtained  an  oil,  coal,  and  gas  lease  upon  a  tract  of  land 
of  which  Henry  Carbon  was  the  owner,  against  the  Goodspeed  Gas  & 
Oil  Company,  which  claimed  a  subsequent  lease  on  the  same 
premises. 

The  court  on  motion  of  the  defendant  gave  judgment  on  the 
pleadings  in  favor  of  the  Goodspeed  Gas  &  Oil  Company,  and  the 
Mound  City  Brick  &  Gas  Company  appeals.    Affirmed. 

Johnston,  C.  J.® — The  only  question  presented  for  consideration 
is  whether  the  failure  of  appellant  to  have  the  lease  in  question  re- 
corded within  90  days  after  its  execution  and  to  have  the  property 
listed  for  taxation  renders  the  lease  null  and  void.  The  trial  court,  it 
is  stated,  held  that  the  lease  was  void  for  noncompliance  with  chap- 
ter 244  of  the  Laws  of  1897   (Gen.  St.  1909,  §  9334)-     It  reads: 

"That  where  the  fee  to  the  surface  of  any  tract,  parcel  or  lot  of 

'The  statement  of  facts  is  omitted. 


PROPERTY    RIGHTS    OF    LESSEES.  659 

land  is  in  any  person  or  persons,  natural  or  artificial,  and  the  right 
or  title  to  any  minerals  therein  is  in  another  or  in  others,  the  right  to 
such  minerals  shall  be  valued  and  listed  separately  from  the  fee  of 
said  land,  in  separate  entries  and  descriptions,  and  such  land  itself 
and  said  right  to  the  minerals  therein  shall  be  separately  taxed  to  the 
owners  thereof  respectively.  The  register  of  deeds  shall  furnish  to 
the  county  clerk,  who  shall  furnish  on  the  first  day  of  March  each 
year  to  each  assessor  where  such  mineral  reserves  exist  and  are  a 
matter  of  record,  a  certified  description  of  all  such  reserves :  Pro- 
vided, that  when  such  reserves  or  leases  are  not  recorded  within 
ninety  days  after  execution,  they  shall  become  void  if  not  listed  for 
taxation." 

This  provision  has  been  interpreted  and  its  validity  upheld.  Min- 
ing Co.  V.  Crawford  County,  yi  Kan.  276,  80  Pac.  601  ;  Gas  Co.  v. 
Neosho  County,  75  Kan.  335,  89  Pac.  750.  It  is  argued  that  the  act 
was  only  intended  to  apply  to  solid  minerals,  such  as  coal,  lead,  and 
zinc,  and  that  because  of  their  peculiar  attributes  oil  and  gas  are  not 
capable  of  ownership  in  place  and  cannot  have  been  within  the  legis- 
lative purpose.  The  terms  of  the  act  are  broad  enough  to  embrace 
minerals  of  every  kind,  and  it  is  well  settled  that  oil  and  gas,  al- 
though fugitive  fluids,  are  minerals.  Zinc  Co.  v.  Freeman,  69  Kan. 
691,  76  Pac.  1 130;  Murray  v.  Allred,  100  Tenn.  100,  43  S.  W.  355, 
39  L.  R.  A.  249,  66  Am.  St.  Rep.  740. 

It  has  also  been  determined  that,  although  oil  and  gas  in  place  are 
a  part  of  the  realty,  the  stratum  in  which  they  are  found  is  capable 
of  severance,  and  by  an  appropriate  writing  the  owner  of  the  land 
may  transfer  the  stratum  containing  oil  and  gas  to  another.  Such 
party  acquired  an  estate  in  and  title  to  the  stratum  of  oil  and  gas, 
and  thereafter  it  becomes  the  subject  of  taxation,  incumbrance,  or 
conveyance.  Kurt  v.  Lanyon,  72  Kan.  60,  82  Pac.  459 ;  Moore  v. 
Griffin.  72  Kan.  164,  83  Pac.  395,  4  L.  R.  A.  (N.  S.)  477;  Barrett 
V.  Coal  Co.,  70  Kan.  649,  79  Pac.  150;  Chartiers'  Block  Coal  Co.  v. 
Mellon,  152  Pa.  286,  25  Atl.  597,  18  L.  R.  A.  702,  34  Am.  St.  Rep. 

645- 

It  being  competent  for  an  owner  of  land  by  contract  or  convey- 
ance to  sever  an  underlying  layer  or  stratum  of  oil  or  gas  from  other 
parts  of  the  land,  and  thus  vest  the  title  of  the  layer  in  another,  there 
remains  the  question  whether  the  writing  executed  by  Henry  Carbon 
is  sufficient  to  accomplish  a  severance  of  the  mineral  from  the  re- 
mainder of  the  land.  The  ordinary  agreement  giving  the  lessee  the 
right  to  enter  and  explore  for  oil  and  gas  and  to  sever  and  own  any 
that  may  be  found,  paying  a  royalty  to  the  owner  of  the  land,  is  a 
license,  which  does  not  operate  as  a  severance  of  the  minerals.  In 
Gas  Co.  V.  Neosho  County,  supra,  the  act  providing  for  taxing  sep- 
arate mineral  interests  in  lands  was  considered,  and  it  was  there 
pointed  out  that  a  lease  of  the  type  just  mentioned  grants  no  estate, 
gives  no  title,  does  not  operate  to  sever  the  oil  and  gas  from  the 


660  OIL,    GAS    AND    OTHER    MINING    LEASES. 

land,  and  is  therefore  not  separately  taxable  to  the  lessee.  On  the 
other  hand,  attention  is  called  to  another  class  of  writings  which  do 
transfer  an  estate  in  the  mineral  and  operate  to  sever  the  ownership 
of  the  oil  and  gas  from  the  ownership  of  the  surface.  It  will  be  ob- 
served that  the  lease  in  question  gives  more  than  a  license,  more  than 
an  incorporated  hereditament.  It  "grants,  conveys  and  warrants 
unto  Robert  Fleming,  second  party,  his  heirs,  successors  and  assigns, 
all  the  oil,  coal  and  gas  in  and  under  the  following  described  prem- 
ises." In  connection  with  the  grant,  the  right  is  given  to  enter  and 
use  the  surface  so  far  as  may  be  necessary  for  the  second  party  to 
avail  himself  of  the  use  and  benefit  of  the  part  conveyed.  The  con- 
sideration was  a  certain  quantity  of  the  coal  and  oil  produced  and  a 
certain  amount  annually  for  each  gas  well  used,  together  with  gas 
sufficient  to  supply  the  residence  of  the  grantor.  In  another  para- 
graph of  the  instrument  provision  is  made  for  the  reconveyance  of 
the  premises  by  the  second  party ;  it  being  stipulated  that  if  no  well 
is  drilled  within  lo  years  he  shall  reconvey  the  property  to  the  first 
party,  and  when  this  is  done  the  instrument  first  made  shall  be  null 
and  void.  There  is  also  a  provision  that  the  first  party  reserves  to 
himself  oil  and  gas  for  his  own  use  on  the  premises  for  domestic 
purposes. 

The  language  of  the  instrument  is  manifestly  that  of  a  grant  and 
not  of  a  license.  It  purports  to  convey  all  of  the  coal,  oil,  and  gas 
underneath  the  tract  of  land,  instead  of  a  privilege  or  license  to  pros- 
pect for  and  to  sever  and  own  so  much  of  it  as  the  lessee  might  find. 
It  transfers  at  once  and  makes  him  the  owner  of  the  minerals  under 
this  tract  of  land — a  very  different  thing  from  giving  him  the  right 
to  prospect  and  to  own  only  that  which  he  finds  and  brings  to  the 
surface.  The  character  of  the  instrument  is  indicated  to  some  extent 
by  the  fact  that  the  grant,  together  with  the  accompanying  rights 
and  privileges,  were  extended  to  the  heirs,  successors,  and  assigns 
of  the  grantee.  Then  there  is  the  reservation  of  oil  and  gas  for  do- 
mestic purposes,  by  which  the  grantor  proceeds  on  the  theory  that  he 
is  taking  back  something  out  of  that  which  was  granted  and  which 
would  have  passed  to  the  grantee  but  for  the  reservation.  The  name 
by  which  the  writing  is  designated  is  not  a  matter  of  great  conse- 
quence, as  what  is  called  a  "lease"  may  as  effectually  transfer  the 
minerals  underneath  a  tract  of  land  as  a  more  formal  instrument  of 
conveyance.  A  severance,  such  as  the  statute  in  question  contem- 
plates, may  be  made  by  an  exception  or  reservation  in  a  deed,  or  by 
an  express  grant  in  any  other  instrument.  In  Sanderson  v.  Scran- 
ton,  105  Pa.  469,  where  there  was  an  agreement  by  an  owner  leasing 
all  of  the  coal  under  the  surface  of  land  and  providing  that  a  certain 
quantity  should  be  mined  by  the  lessee  each  year,  that  monthly  pay- 
ments should  be  made  by  the  lessee  in  proportion  to  the  quantity 
mined,  and  extending  the  rights  and  privileges  conferred  by  the 
lease  to  the  heirs,  executors,  administrators,  and  assigns,  it  was  held 


PROPERTY    RIGHTS    OF    LESSEES.  66l 

"that  this  agreement  was  not  merely  a  license  or  lease  to  mine  coal 
to  become  the  lessee's  when  mined,  but  it  operated  as  such  a  sever- 
ance of  the  surface  and  subjacent  strata,  and  a  sale  or  assignment  of 
the  coal  in  place,  as  would  relieve  the  owner  of  the  surface  from  re- 
sponsibility for  taxes  levied  upon  the  coal."  See,  also,  Peterson  v. 
Hall,  57  W.  Va.  535,  50  S.  E.  603. 

We  see  no  difterence  in  applying  the  act  to  the  cases  such  as  this, 
where  the  underlying  strata  of  land  have  become  vested  in  different 
owners.     Counsel  for  appellant  says  the  lease  or  reserve  must  be 
taxed,  if  at  all,  as  personal  property,  and  suggest  difficulties  in  de- 
termining the  situs  of  such  property.     It  is  the  interests  or  estates 
severed  and  created  which  are  to  be  taxed,  and  not  the  instrument 
creating  the  separate  interests.    In  Gas  Co.  v.  Neosho  County,  supra, 
it  was  demonstrated  that  the  mineral  rights  carved  out,  and  which 
were  to  be  subject  to  taxation,  were  to  be  treated  as  realty,  and  not 
as  personal  property.     It  was  said:    "It  is  contemplated  that  there 
shall  be  an  estate  consisting  of  what  is  left  after  the  mineral  rights 
have  been  carved  out,  and  that  there  shall  be  an  estate  consisting  of 
the  mineral  rights  which  have  been  segregated.     The  statute  further 
contemplates  that  each  state  must  vest  in  a  separate  person.    The  re- 
spective proprietors  are  called  'owners,'  and  the  estate  in  the  mineral 
is  nothing  short  of  the  right  or  title  to  the  minerals  themselves  as 
they  lie  in  the  ground."     In  Mining  Co.  v.  Crawford  County,  supra, 
it  was  suggested  that  there  would  be  difficulty  in  enforcing  the  act 
and  in  the  assessment  of  such  segregated  property ;  but  the  sugges- 
tion was  met  by  saying  that  the  value  of  such  property  might  be  as- 
certained and  the  assessment  made  under  the  general  rules  govern- 
ing the  assessment  of  real  property.    As  it  is  the  interest  in  the  land, 
and  not  the  instrument,  which  transfers  the  interest  that  is  taxed,  the 
indefiniteness  which  counsel  see  in  the  act  largely  disappears.     The 
lease  does  not  become  void  by  the  mere  failure  to  record  it,  but  only 
when  there  is  the  additional  delinquency  of  omitting  to  list  it  for 
taxation.     If  it  is  recorded  as  the  statute  enjoins,  the  taxing  officer 
has  an  opportunity  to  find  and  assess  the  property  conveyed  by  it, 
and  if  the  owners  omit  to  record  the  lease,  and  further  omit  to  list  it, 
and  thus  bring  it  to  the  attention  of  the  taxing  officials  within  the 
time  fixed  for  listing  property,  the  lease  then  becomes  void  and  may 
be  so  declared  by  the  court  at  the  instance  of  any  interested  party. 

As  the  owner  of  the  interest  in  question  failed  to  record  the  lease 
within  the  prescribed  time,  and  also  failed  to  list  the  property  for 
taxation,  the  lease  was  a  nullity,  and  the  judgment  of  the  trial  court 
deciding  that  it  was  void  will  be  affirmed.  All  the  Justices  concur- 
ring. 


662  OIL,    GAS    AND    OTHER    MINING    LEASES. 

Section  2. — Covenants  and  Conditions  in  Oil  and  Gas  Leases. 

HEADLEY  v.  HOOPENGARNER  et  al. 

1906.     Supreme  Court  of  Appeals  of  West  Virginia. 
60  W.  Va.  626,  55  S.  E.  744. 

Bill  by  Mansfield  Headley  against  H.  L.  Hoopengarner  and 
others.  Decree  for  plaintiff,  and  defendant  the  Colonial  Oil  Company 
and  others  appeal.   Reversed  and  remanded. 

Sanders.  J.'— This  is  a  suit  in  equity,  brought  in  the  circuit  court 
of  Tyler  county  by  Mansfield  Headley  against  H.  L.  Hoopengarner 
and  others.  Upon  a  final  hearing  the  court  below  decreed  for  the 
plaintiff,  and  from  this  decree  an  appeal  has  been  allowed.    *    *    * 

It  is  contended  by  plaintiff's  counsel  that  there  is  no  implied 
covenant  of  warranty  in  an  oil  and  gas  lease.  This  is  based  upon 
the  theory  that  the  lease  from  the  Headley  heirs  to  Hoopengarner, 
Wharton,  and  Karnes  &  Co.  was  a  sale  of  the  oil  in  place,  and 
passed  a  fee-simple  estate,  and  not  merely  a  lease  or  rental  contract. 
If  this  claim  were  correct,  and  had  it  been  a  grant  of  the  oil  in 
place,  creating  an  estate  in  fee,  then  the  authorities  unanimously 
hold  that  there  is  no  implied  covenant  of  warranty,  but  that  such 
covenant  must  be  expressed  in  the  deed  ;  but,  also,  on  the  other  hand, 
if  the  title  passes  an  estate  for  years,  with  a  reversion  to  the  lessor, 
then  there  need  be  no  express  warranty  of  title  or  for  peaceable  and 
quiet  enjoyment  of  the  demised  premises,  but  such  covenant  is  im- 
plied in  law.  Where  the  lease  contains  such  language  as  the  one 
we  have  here,  which  says,  "have  granted,  demised,  leased,  and  let, 
and  by  these  presents  does  demise,  grant,  lease,  and  let,  unto  the 
party  of  the  second  part,"  it  is  universally  held  that  there  is  an  im- 
plied covenant  of  title  for  quiet  and  peaceable  enjoyment  for  the 
purposes  of  the  lease,  when  there  is  no  statute  restricting  or  quali- 
fying the  meaning  of  such  words.  This  is  not  an  open  question  in 
this  state.  In  the  case  of  Knotts  et  al.  v.  McGregor,  47  W.  Va.^  566, 
35  S.  E.  899,  this  is  held  to  be  the  law,  wherein  it  is  said :  "In  a 
lease  for  oil  and  gas,  there  is  an  implied  covenant  of  right  of  entry 
and  quiet  enjoyment  for  the  purposes  of  the  lease."  "With  respect 
to  estates  less  than  freehold,  covenants  for  title  were  from  the 
earliest  times  implied,  not  only  from  the  words  of  leasing,  'such  as 
"demisi,"  "concessi,"  or  the  like,'  but  even  from  the  relation  of 
landlord  and  tenant ;  and  such  is  the  law  at  the  present  day,  unless 
where,  as  in  some  of  the  United  States,  it  has  been  altered  by  legis- 
lation."   Rawle  on  Covenants  (5th  Ed.)  §  272.     *     *     * 

Now,  then,  we  find  that  in  a  conveyance  of  an  estate  less  than  a 

'  Parts  of  the  opinion  are  omitted. 


COVENANTS    AND    CONDITIONS.  663 

fee,  as  for  a  term  of  years,  that  a  covenant  of  warranty  of  title  and 
for  quiet  and  peaceable  enjoyment  is  implied. 

Then  the  question  is,  does  the  lease  convey  a  fee-simple  estate, 
or  an  estate  for  years  ?  This  is  the  ordinary  oil  and  gas  lease,  with 
a  reversion  to  the  grantors,  for  the  purpose  of  mining  and  operat- 
ing for  oil  and  gas,  laying  pipe  lines,  building  tanks,  stations,  and 
structures  thereon,  and,  in  consideration  thereof,  to  pay  as  royalty 
a  one-eighth  part  of  all  the  oil  produced  and  saved  from  the  leased 
premises.  While  we  have  some  cases  which  may  be  construed  to 
hold  that  the  ordinary  oil  lease,  investing  the  lessee  with  the  right 
to  remove  all  the  oil  in  place  in  the  premises  in  consideration  of  a 
certain  stipulated  royalty,  is,  in  legal  effect,  a  sale  of  a  portion  of 
the  land,  yet  these  cases  do  not  conform  to  many  others,  which  treat 
such  contracts  only  as  leases,  and  a  conveyance  for  a  term  of  years, 
and  not  to  pass  an  estate  in  fee.  We  do  not  think  the  lease  in  ques- 
tion can  be  so  construed  as  to  be  other  than  a  contract  which  passes 
only  an  estate  for  years.  "A  lease  is  a  contract  for  the  possession 
and  profits  of  lands  and  tenements  on  the  one  side,  and  the  recom- 
pense or  rents  on  the  other,  or,  in  other  words,  a  conveyance  to  a 
person  for  life,  years,  or  at  will,  in  consideration  of  a  rent  or  other 
recompense."  18  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  597.  And  a 
lease  is  defined  to  be,  by  Blackstone,  properly  a  conveyance  of  lands 
or  tenements  in  consideration  of  rent  or  other  recompense,  made  for 
life,  for  years,  or  at  will,  but  always  for  a  less  time  than  the  lessor 
hath  in  the  premises,  because,  if  it  be  for  the  whole  interest,  it  is 
more  properly  an  assignment  than  a  lease.  In  fact,  there  is  no  diffi- 
culty in  determining  the  requisites  of  a  lease.  There  is  no  difference 
of  opinion  as  to  that.  The  definitions  are  uniform,  but  the  difficulty 
is  in  always  determining  whether  or  not  the  particular  paper  or  con- 
tract falls  within  the  definition.  Applying  the  definition  to  the  con- 
tract here,  and  we  find  that  it  falls  clearly  within  the  true  meaning 
of  the  word  lease.  It  conveyed  an  estate  less  than  the  lessor  had 
in  the  premises ;  it  was  to  remain  in  force  for  the  term  of  three  years 
from  its  date,  and  as  long  thereafter  as  oil  or  gas,  or  either  of  them, 
was  produced  from  the  premises  by  the  lessees ;  it  contained  the 
usual  words  essential  to  its  operation,  which  are,  "grant,  lease  and 
let" ;  it  gives  to  the  lessees  the  right  to  the  possession  of  the  lands  for 
oil  and  gas  operations,  with  the  profits  derived  therefrom ;  and, 
on  the  other  hand,  the  lessor  is  to  be  recompensed  by  his  receiv- 
ing a  certain  part  of  the  production  as  royalty.  It  cannot  be  said 
that  the  provision  in  the  lease,  which  says  that  it  shall  remain 
in  force  as  long  after  three  years  as  oil  and  gas,  or  either,  is  pro- 
duced by  the  lessee,  can  be  so  construed  as  to  detract  from  it  the 
essentials  of  a  lease,  and  make  it  such  a  conveyance  as  to  pass  the 
whole  estate  to  the  lessor.  This  is  an  optional  provision,  and  there 
is  a  clause  in  the  lease  reserving  unto  the  lessees  the  right  to  sur- 
render the  lease  for  cancellation  at  any  time.     Therefore  Thomas 


664  OIL,    GAS    AND    OTHER    MINING    LEASES. 

J.  Heaclley,  the  father  of  Mansfield  Headley,  having  in  his  Hfe- 
time  conveyed  to  the  South  Penn  Oil  Company  and  to  Loomis  a 
one-half  of  the  oil  and  gas  underlying  the  46  and  24  acres,  respect- 
ively, and  which  should  be  construed  to  be  one-half  of  the  prevail- 
ing one-eighth  royalty,  and  Alansfield  Headley  having  leased  to 
Hoopengarner,  Wharton,  and  Karnes  &  Co.,  the  remote  assignors 
of  the  defendants,  his  interest  in  the  seven-eighths  of  the  oil  and 
gas  underlying  the  70  acres,  reserving  one-fifth  of  the  one-eighth 
royalty,  would  be  liable  on  his  warranty  to  Hoopengarner,  Wharton, 
and  Karnes  &  Co.,  or  those  claiming  under  them,  but  just  to  what 
extent  it  is  not  necessary  to  determine,  for  reasons  hereinafter  ap- 
pearing; nor  is  it  absolutely  necessary  for  the  decision  of  the  case 
to  construe  the  conveyance  from  the  Headley  heirs,  and  to  determine 
whether  or  not  it  contains  implied  covenants  of  title  and  quiet  en- 
joyment, but  this  question  is  presented  by  the  record,  and  it  is  prop- 
er and  just  that  it  should  be  considered  and  determined;  and  to 
decide  it  is  only  to  give  two  reasons,  instead  of  one,  why  Mansfield 
Headley  is  not  entitled  to  the  relief  he  asks.     *     *     * 

The  decree  of  the  circuit  court  is  reversed,  and  this  cause  is  re- 
manded, to  be  proceeded  in  and  determined  according  to  the_  princi- 
ples herein  announced,  and  according  to  the  rules  and  principles 
governing  courts  of  equity. 


STEELSMITH  v.  GARTLAN  et  al. 

1898.     Supreme  Court  of  Appeals  of  West  Virginia. 
45  W.  Va.  27,  29  S.  E.  978. 

Bill  by  Amos  Steelsmith  against  James  Gartlan  and  others.  De- 
cree for  defendants,  and  plaintiff  appeals.     Reversed. 

Dent,  J.  On  the  30th  day  of  August,  1889,  Knotts  and  Garber 
obtained  a  lease  for  oil  purposes  covering  the  land  controversy  in 
this  suit,  without  other  consideration  than  one-eighth  of  the  oil  pro- 
duced and  $200  per  annum  for  each  paying  gas  well,  with  the  stipu- 
lation that  the  lessees  should  complete  a  well  within  one  year  from 
the  date  of  the  lease ;  and  the  failure  to  do  so  rendered  the  lease 
null  and  void  unless  the  lessees  should  pay  25  cents  per  acre  from 
and  after  the  time  above  specified  for  the  completion  of  said  well, 
when  such  payment  should  operate  to  extend  the  time  for  five  years. 
This  lease  David  McGregor  considered  forfeited,  and  refused  to  ac- 
cept the  rent  therefor,  or  continue  the  same  in  force.  If  the  condi- 
tions had  been  performed  by  payment  of  rent  accepted  by  the  lessor, 
it  would  have  expired  the  30th  of  August,  1895,  no  well  having 
been  drilled  by  Knotts  and  Garber.  On  the  loth  day  of  February, 
iSgq,  Matilda  McGregor,  as  devisee  and  executor  of  David  Mc- 


COVENANTS    AND    CONDITIONS.  665 

Gregor,  then  deceased,  executed  the  following-  lease  to  James  Gart- 
lan,  to  wit : 

"An  agreement,  made  the  nth  day  of  F'ebruary,  A.  D.  1895,  be- 
tween Matilda  McGregor,  of  the  district  of  Grant,  county  of  Ritchie, 
and   state  of  West  Virginia,  lessor,  and  James  Gartlan,  of   Pitts- 
burg, Pennsylvania,  lessee,  witnesseth :     That  the  lessor,  in  consid- 
eration of  one  dollar,  the  receipt  of  which  is  hereby  acknowledged, 
and  of  other  valuable  considerations,  do  hereby  demise  and  grant 
unto  the  lessee,  his  heirs  or  assigns,  all  the  oil  and  gas  in  and  under 
the  following  described  tract  of  land,  and  also  the  said  tract  of  land, 
for  the  purpose  and  with  the  exclusive  right  of  operating  thereof 
for  said  gas  and  oil,  together  with  the  right  of  way,  the  right  to  lay 
pipes  over  and  use  water  from  said  premises,  and  also  the  right  to 
remove  at  any  time  all  property  placed  thereon  by  the  lessee,  which 
tract  of  land  is  situated  in  the  district  of  Grant,  county  of  Ritchie, 
and  state  of  West  Virginia,  and  is  bounded  and  described  as  follows, 
to  wit :    North  by  lands  of  Andrew  Douglass  and  B.  &  O.  Railroad, 
east  by  lands  of  Andrew  Douglass  and  Jacob  Hatfield,  south  by 
lands  of  A.  M.  Douglass  and  others,  west  by  lands  of  Andy  Hall  and 
others,  containing  one  hundred  and  twenty-two  acres,  more  or  less ; 
to  have  and  to  hold  the  same  unto  the  lessee,  his  heirs  and  assigns, 
for  the  term  and  period  of  five  years  from  the  date  hereof,  and  so 
much  longer  as  oil  or  gas  is  found  in  paying  quantities  thereon, 
yielding  and  paying  to  the  lessor  the  one-eighth    (^)   part  of  all 
the  oif  produced  and  saved  from  the  premises,  delivered  free  of  ex- 
pense into  tanks  or  pipe  lines  to  the  lessor's  credit ;  and.  should  any 
well  produce  gas  in  sufficient  quantities  to  justify  marketing,  the 
lessor  shall  be  paid  at  the  rate  of  two  hundred  dollars  per  year  for 
such  well  so  long  as  the  gas  therefrom  is  sold,  lessor  to  have  gas 
for  domestic  use  on  the  premises  free,  she  making  her  own  con- 
nections.    Second  party  convenants  and  agrees  to  locate  all  wells 
so  as  to  interfere  as  little  as  possible  with  the  cultivated  portion  of 
the  farm,  and  to  pay  all  damages  to  growing  crops  by  reason  of 
operations.     No  well  to  be  drilled  on  this  lease  within  five  hundred 
feet  of  the  buildings  as  now  located,  without  the  consent  of  both 
parties.    In  case  no  well  shall  be  completed  on  the  above-described 
premises  within  one  month  from  the  date  hereof,  this  lease  shall 
become  null  and  void,   and   without   any   further   eflfect   whatever, 
unless  the  lessee  shall  pay  for  further  delay  at  the  rate  of  fifty  dollars 
per  month  in  advance  thereafter  until  a  well  shall  be  completed. 
Such  payment  may  be  made  in  hand  or  by  deposit  to  the  lessor's 
credit  in  Second  National  Bank  of  Parkersburg.    If  above-mentioned 
well  produces  20  barrels  of  oil  per  day  for  the  first  30  days  after 
completion,  the  lessee  agrees  to  drill  2  more  wells  on  the  above- 
mentioned  premises  within  a  year  from  the  completion  of  the  above- 
mentioned  well;  provided  that  the  second  well  drilled  produces  20 


666  OIL,    GAS    AND   OTHER    MINING    LEASES, 

barrels  of  oil  per  day  for  the  first  30  days  after  completion.  If 
second  well  does  not  produce  20  barrels  per  day  for  first  30  days 
after  completion,  then  it  shall  be  optional  with  the  lessee  to  drill  the 
third  well.  All  wells  shall  be  served  with  the  best  known  means 
to  produce  the  greatest  quantity  of  oil.  A  failure  to  comply  with 
any  of  the  conditions  of  this  lease  shall  render  the  same  null  and 
void,  and  of  no  effect.  It  is  agreed  further  that  second  party  shall 
have  the  right  at  any  time  to  surrender  this  lease  to  first  party  for 
cancellation,  after  which  all  payments  and  liabilities  to  accrue  under 
and  by  virtue  of  its  terms  shall  cease  and  determine,  and  the  lease 
become  absolutely  null  and  void.  It  is  understood  that  all  the  terms 
and  conditions  between  the  parties  hereto  shall  extend  and  apply  to 
their  respective  heirs,  executors,  administrators,  and  assigns.  In 
witness  whereof,  the  said  parties  have  hereunto  set  their  hands  and 
seals   the   day   and   year   first   above    written.     Matilda    McGregor. 

[Seal.]    Matilda  McGregor,  Executrix.    [Seal.]     

[Seal.]    James  Gartlan.     [Seal.] 

"Sealed  and  delivered  in  presence  of ." 

Gartlan,  with  the  assistance  of  others,  put  down  a  test  hole  about 
i,8go  feet  by  April  following,  but,  finding  neither  gas  nor  oil  in  pay- 
ing quantities,  removed  the  derrick  and  tools,  pulled  the  casing,  and 
plugged  the  hole,  and  left  the  premises.  At  the  same  time  he  sur- 
rendered a  number  of  other  leases,  but  through  his  agent,  Parks, 
asked  permission  of  Mrs.  McGregor  to  retain  the  lease  under  consid- 
eration for  a  short  time.  During  the  time  the  test  was  made  the 
lessee  paid  Mrs.  McGregor  three  monthly  payments  of  $50  each,  as 
stipulated,  because  of  delay  in  completion  of  the  first  w^ell.  He  then 
discontinued  such  payments,  and  entirely  abandoned  and  ceased  fur- 
ther operations  for  oil  and  gas  on  the  premises.  Mrs.  McGregor, 
according  to  her  testimony,  before  he  stopped  operations  insisted 
that  he  should  go  deeper,  and  make  a  more  thorough  test,  even  being 
willing  to  part  with  a  further  portion  of  her  interest  in  the  result,  if 
successful,  if  he  would  consent  to  do  so.  But.  claiming  that  he  had 
made  a  full  test,  he  refused  her  request.  Gartlan  had  taken  a  man 
by  the  name  of  Hays  in  with  him.  On  the  17th  of  September,  1896, 
Mrs.  McGregor  wrote  them  the  following  letter  : 

"Cairo,  W.  Va.,  Sept.  17,  1896.  Mess.  Hays  and  Gartlan — Gentle- 
men :  As  you  have  abandoned  the  lease  given  you  by  me  on  our 
farm,  and  shown  by  your  actions  that  you  did  not  intend  to  operate 
it  any  further,  I  would  ask  you  kindly  to  send  it  to  me  with  a  release 
deed,  as  I  am  now  ready  to  lease  again.  Please  give  this  your  earli- 
est attention,  and  oblige,  M.  McGregor." 

Getting  no  reply  from  this,  she  wrote  another  letter  to  a  Mr. 
Parks,  who  had  acted  as  agent  for  Gartlan,  to  wit : 

"Cairo,  W.  Va.,  Sept.  28,  1896.  Mr.  Parks— Sir :  I  wrote  a  letter 
some  time  ago  to  Mr.  Gartlan  and  your  uncle,  asking  them  kindly 


COVENANTS    AND    CONDITIONS.  667 

to  send  me  the  lease  that  they  have  been  holding  on  my  place.  You 
know  you  only  asked  me  to  hold  it  for  a  short  time,  and  now  I  think 
I  have  waited  a  sufficient  time  for  them  to  make  up  their  minds  on 
what  they  intended  to  do ;  and  they  have  shown,  by  abandoning  the 
lease,  that  they  did  not  intend  to  operate  it,  so  I  think  they  ought  to 
send  me  the  lease  at  once,  so  I  could  be  making  something  out  of  it, 
as  life  is  too  short  for  me  to  let  that  amount  of  land  lie  idle,  and  not 
be  making  even  the  taxes  off  it.  Now,  please  take  this  in  considera- 
tion, and  act  on  this  at  once,  as  you  know  I  mean  business.  And  I 
understand  you  have  Mr.  Gartlan's  place  in  the  Co.  now.  I  don't 
know  what  position  Gartlan  holds  in  the  company  at  this  time. 
Now,  do  please  give  this  your  attention  at  once,  as  I  am  going  to 
lease.  I  am  going  to  get  something  out  of  it  or  nothing,  as  the  case 
may  be.  That  remains  to  be  seen.  I  may  get  a  19^  barrel  well 
next  time  and  may  be  another  dry  hole.  I  can't  tell.  Now,  you  un- 
derstand me.  I  am  going  to  lease  at  once  if  I  don't  hear  from  you 
by  return  mail.    Yours,  in  haste,  your  friend,  M.  McGregor." 

To  this  she  also  received  no  reply,  when  she  wrote  a  third  letter,  as 
follows,  to  wit : 

"Cairo,  W.  Va.,  Oct.  3.  1896.  Mr.  Parks — Sir:  I  wrote  you  on 
the  28th  Sept.,  asking  for  the  lease  that  your  Co.  holds  on  my  farm ; 
asked  you  to  answer  me  by  return  mail,  and  I  think  you  have  had 
sufficient  time  to  write,  and  now  I  am  going  to  write  you  again,  and 
now  I  want  an  answer  by  wire,  as  I  have  no  time  to  wait  for  mails. 
Well,  Mr.  Gartlan  was  here  since  and  left  again  without  doing  any- 
thing. He  still  wants  me  to  wait  and  see  the  Wilson  and  Church 
wells  come  in  before  he  does  anything,  so  that  will  develop  the 
other  two  sides  of  the  lease.  I  told  him  I  was  not  willing  to 
wait  any  longer ;  if  he  was  going  to  do  anything,  now  was  the 
time. to  do  it,  while  the  excitement  is  up.  I  can  lease  now,  and 
to  a  good  advantage;  but,  if  either  of  those  wells  should  come 
in  dry,  it  will  give  another  black  eye,  and  I  could  not  lease  it  at 
all.  So  I  think  he  is  injuring  me  in  holding  this  lease  from  me. 
and  not  going  to  work  on  it  at  once,  and  protecting  the  lines. 
If  he  is  not  willing  to  take  a  risk  on  it,  I  am  not  either.  I  told  him 
if  they  wanted  to  hold  it  any  longer  they  would  have  to  pay  me  the 
back  rental.  I  could  have  leased  it  long  ago,  and  been  getting  more 
from  it  than  the  back  rental  is  worth  ;  but  I  feel  conscientious  in  the 
matter,  and  did  not  feel  disposed  to  give  them  any  trouble  over  it,  as 
you  know  I  could  by  putting  a  lease  on  top  of  theirs.  It  might  cause 
a  lawsuit,  at  least,  and  that\vould  cost  them  more  than  the  rental,  so 
you  see  I  want  to  treat  them  fairly,  and  do  what  is  right  by  them,  if 
they  will  let  me  do  so ;  but,  if  they  will  not,  then  the  only  thing  left 
for  me  to  do  is  to  look  out  for  myself  and  the  interest  of  this  estate 
which  I  represent.  Mr.  Gartlan  promised  me  he  would  see  your 
uncle  just  as  soon  as  he  reached  Pittsburg,  and  wire  me  what  he 


668  OIL,    GAS    AND    OTHER    MINING   LEASES. 

was  willing  to  do  in  the  matter.  Now,  I  will  wait  a  sufficient  time 
for  his  telegram,  and  also  for  yours,  and,  if  I  fail  to  get  one,  then 
I  am  going  to  lease  at  once.  I  have  a  good  offer,  and  1  am  going  to 
take  it  now  while  the  excitement  is  up.  1  am  offered  more  bonus  than 
all  the  back  rental  comes  to  and  the  >4  of  the  oil  if  there  is 
any,  and,  if  there  is  none,  I  will  have  the  bonus  anyway.  Now  you 
see  my  offer  is  a  good  one,  and  they  can't  blame  me  for  taking  it. 
And  now  for  your  lease,  or  the  rental  at  once,  as  there  is  no  time  to 
wait,  and  you  know  I  mean  just  what  I  say.  So  please  let  me 
hear  from  you  at  once  by  wire,  as  the  parties  are  waiting,  and  are 
willing  to  take  it  at  their  own  risk.  Please  see  your  uncle  at  once, 
and  wire  me  his  conclusion.  We  have  a  telegram  office  here  at  Cairo. 
Yours,  in  haste,  M.  McGregor." 

Then,  getting  no  satisfaction  from  the  parties,  either  in  the  way 
of  rentals  or  a  new  lease,  on  the  22d  of  October,  1896,  she  executed 
a  new  lease  to  Amos  Steelsmith,  the  plaintiff  and  appellant  in  this 
case.  In  the  meantime  the  parties  claiming  under  the  Gartlan  lease 
moved  some  timbers  on  the  land,  as  though  in  preparation  for  again 
boring,  which  Mrs.  McGregor  had  cast  off.  Steelsmith,  under  his 
lease,  proceeded  forthwith  to  put  down  two  wells,  both  coming  in 
producers,  when,  before  going  to  further  expense,  he  filed  his  bill  to 
cancel  the  Gartlan  lease  as  a  cloud  on  his  title.  The  Gartlan  lessees 
filed  an  answer  in  the  nature  of  a  cross  bill,  claiming  the  cancellation 
of  Steelsmith's  lease  and  the  oil  wells  and  their  production,  which 
was  sustained  by  the  court,  and  the  relief  sought  granted.  Knotts 
and  Garber,  also,  to  a  supplemental  and  amended  bill  filed  by  Steel- 
smith, filed  an  answer  in  the  nature  of  a  cross  bill,  praying  for  affirm- 
ative relief,  which  was  denied,  and  the  bills  were  dismissed.  Steel- 
smith appeals. 

The  question  of  importance  presented  to  the  court  is  as  to  whether 
the  Gartlan  lease  was  at  an  end  at  the  time  the  Steelsmith  lease  was 
executed.  The  Gartlan  lease  is,  with  slight  variance,  in  the  usual 
form  of  such  leases,  and  amounts  to  nothing  more  than  the  privilege 
of  searching  for  oil  and  gas,  and,  if  they  be  found  in  paying  quanti- 
ties, then  vests  an  oil  and  gas  tenancy  in  the  lessee  for  the  period  of 
five  years,  or  until  exhaustion.  Mrs.  McGregor  entered  into  the 
lease  for  the  sole  consideration  of  the  prospective  rents  and  royalties 
she  would  enjoy  if  the  lessee,  in  diligent  search  therefor,  should  find 
oil  and  gas  in  paying  quantities.  If  such  lease  failed  to  bind  the  les- 
see to  diligent  search  for  oil  and  gas,  it  was  without  consideration, 
binding  on  neither  party,  and  voidable,  if  not  void,  at  the  pleasure  of 
either.  Cowan  v.  Iron  Co.,  83  Va.  547,  3  S.  E.  120;  Petroleum  Co. 
V.  Coal,  Coke  &  Mfg.  Co.,  8q  Tenn.  381,  18  S.  W.  65.  The  only  pro- 
vision in  the  lease  binding  the  lessee  to  prosecute  operation  thereun- 
der with  diligence  is  as  follows : 

"In  case  no  well  shall  be  completed  within  one  month  from  the 


COVENANTS    AND    CONDITIONS.  669 

date  hereof,  this  lease  shall  become  null  and  void,  and  without  any 
further  effect  whatever,  unless  the  lessee  shall  pay  for  further  delay 
at  the  rate  of  $50  per  month  in  advance  thereafter  until  a  well  shall 
be  completed.  *  *  *  If  above-mentioned  well  produces  20  bar- 
rels of  oil  per  day  for  the  first  30  days  after  completion,  the  lessee 
agrees  to  drill  2  more  wells  on  the  above-mentioned  premises  within 
one  year  from  the  date  of  the  completion  of  the  above-mentioned 
well,  provided  that  the  second  well  drilled  produces  20  barrels  of  oil 
per  day  for  the  first  30  days  after  completion." 

There  is  no  provision  made  for  any  further  operations  or  payment 
of  rent  in  case  the  first  well,  when  completed,  is  nonproductive.  But 
the  contract  is  at  an  end  as  to  both  parties  as  soon  as  such  first  well 
is  abandoned  as  unsuccessful.  "A  vested  title  cannot  ordinarily  be 
lost  by  abandonment  in  a  less  time  than  is  fixed  by  the  statute  of 
limitations,  unless  there  is  satisfactory  proof  of  an  intention  to  aban- 
don. An  oil  lease  stands  on  quite  a  different  ground.  The  title  is 
inchoate,  and  for  the  purpose  of  exploration  only,  until  oil  is  found. 
If  it  is  not  found,  no  estate  vests  in  the  lessee,  and  his  title,  whatever 
it  is,  ends  when  the  unsuccessful  search  is  abandoned."  Oil  Co.  v. 
Fretts,  152  Pa.  St.  451.  25  Atl.  732;  Plummer  v.  Iron  Co.,  160  Pa. 
St.  483,  28  Atl.  853 ;  Crawford  v.  Ritchey,  27  S.  E.  220,  43  W.  Va. 
— .  This  unsuccessful  search  and  abandonment  in  this  case  applies 
to  the  first  well,  the  only  one  the  lessee  stipulated  to  put  down  unless 
gas  and  oil  were  found  in  paying  quantities.  He  could  not,  as  he 
himself  maintains,  be  compelled  to  put  down  another  well ;  and,  he 
not  being  bound,  the  lessor  was  not  bound  either,  for  the  only  consid- 
eration left  to  her  was  the  prospective  oil  royalties  and  gas  rentals, 
which  the  lessee  was  in  position  to  entirely  defeat.  Contracts  unper- 
formed optional  as  to  one  of  the  parties  are  optional  as  to  both. 

Nor  can  there  be  a  different  conclusion  if  it  is  held  that  the  lease, 
'being  for  the  purpose  of  operating  for  oil  and  gas,  is  subject  to  the 
implTed  precedent  condition,  according  to  the  decisions  of  some  of 
the  states,  notably  North  Carolina,  that  the  lessee  shall  diligently 
prosecute  the  search  and  operation,  for  in  such  case  the  forfeiture 
would  follow  in  a  much  less  time  than  18  months  under  the  general 
clause,  to  wit:  "A  failure  to  comply  with  any  of  the  conditions  of 
this  lease  shall  render  the  same  null  and  void  and  of  no  effect,"  which 
necessarily  applies  to  implied  as  well  as  express  conditions.  Conrad 
V.  Morehead,  89  N.  C.  31  ;  Maxwell  v.  Todd,  112  N.  C.  677,  16  S.  E. 
926;  Hawkins  v.  Pepper,  117  N.  C.  407,  23  S.  E.  434.  In  the  case 
of  Munroe  v.  Armstrong,  96  Pa.  St.  307,  it  was  held  that  a  cessation 
of  active  operations  for  30  days  forfeited  a  lease  for  oil_  purposes. 
The  court  says,  on  page  310:  "An  oil  lease  yields  nothing  to  the 
landowner  when  not  worked,  and  is  an  incumbrance  on  his  land,  ty- 
ing his  hands  against  selling  or  leasing  to  others ;  but,  when  idle,  it 
costs  the  lessee  nothing,  and  is  valuable,  or  may  prove  valuable,  if  he 


670  OIL,    GAS    AND    OTHER    MINING    LEASES, 

can  liold  it  waiting  developments  in  its  vicinity.  If  a  well  be  pro- 
ductive, it  is  the  interest  of  both  the  lessor  and  the  lessee  that  it  be 
continuously  operated  until  its  exhaustion,  but,  if  dry,  it  is  of  no 
value.  Holding  on  to  a  lease  after  ceasing  search  is  often  for  pur- 
poses of  speculation,  the  thing  which  a  prudent  landowner  guards 
against.  Forfeiture  for  nondevelopment  or  delay  is  essential  to  pri- 
vate and  public  interests  in  relation  to  the  use  and  alienation  of  prop- 
erty." 

In  this  case  the  condition  was  ex])ress,  ])ut  the  same  rule  applies 
with  equal  force  to  implied  conditions.  However,  as  before  shown, 
tlie  lessee  having  abandoned  the  only  obligatory  search  provided  for 
in  his  lease,  it  died  on  his  hands  without  surrender,  forfeiture,  or  in- 
tentional abandonment  on  his  i)art,  for  he  was  v/ithout  authority  to 
make  further  explorations  without  the  consent  of  and  arrangement 
as  to  conditions  with  the  lessor ;  in  other  w^ords,  without  a  new  lease 
or  extension  of  the  old.  Such  leases  are  construed  most  strictly 
against  the  lessee  and  favorable  to  the  lessor.  Bettman  v.  Harness, 
42  W.  Va.  433,  26  S.  E.  271.  When  a  lease  provides  the  mode,  man- 
ner, and  character  of  search  to  be  made,  implications  in  regard  there- 
to are  excluded  thereby  as  repugnant.  And  the  demise  for  the  pur- 
pose of  operating  for  oil  and  gas  for  the  period  of  five  years  is  de- 
pendent on  the  discovery  of  oil  and  gas  in  the  search  provided  for, 
and,  if  such  search  is  unsuccessful,  the  demise  fails  therewith,  as  such 
discovery  is  a  condition  precedent  to  the  continuance  or  vesting  of 
the  demise. 

The  lessee's  title  being  inchoate  and  contingent,  both  as  to  the 
five-years  limit  and  time  thereafter,  on  the  finding  of  oil  and  gas  in 
paying  quantities,  did  not  become  vested  by  reason  of  his  putting 
down  a  nonproductive  well.  This  gave  him  no  new  or  more  exten- 
sive rights  than  he  enjoyed  before,  but  in  fact  destroyed  all  his  rights 
under  the  lease.  As  is  said  in  Williamson  v.  Jones,  27  S.  E.  411,  43 
W.  Va.  562.  "As  an  abortive  well  neither  enhances  the  value  nor 
yields  anything  to  the  true  owner,  he  ought  not  to  be  charged  with 
the  costs  thereof."  The  lessee  would  charge  the  expense  of  this 
abortive  well  as  though  it  were  a  part  of  the  consideration  for  this 
lease,  when  it  was  plainly  evident  that  no  such  thing  was  ever  had 
in  contemplation  by  the  parties,  but  this  is  a  mere  desperate  after- 
thought to  furnish  a  nonexistent  money  consideration  for  the  con- 
tinuance of  the  lease.  A  dry  hole,  plugged  up  and  abandoned,  while 
expensive  to  the  lessee,  is  no  advantage,  but  an  incumbrance,  to  the 
lessor.  Then  why  should  she  pay  for  it  by  a  nonoperating  and  in- 
definite extension  of  the  lease,  to  await  the  will  and  pleasure  of  the 
lessee,  who  claims  the  option  to  operate,  abandon,  surrender,  or  for- 
feit at  his  pleasure,  while  numerous  others  are  clamoring  for  the 
privilege  of  diligent  operation,  and  ofifering  a  large  bonus  therefor? 
Such  a  holding  would  be  unconscionable,  and  contrary  to  both  right 


COVENANTS    AND    CONDITIONS.  67I 

and  justice.  Mrs.  McGregor's  letters  are  given  at  length  to  show 
how  fully  she  understood  her  rights,  and  yet  how  willing,  out  of  ten- 
der womanly  sympathy,  she  was,  in  consideration  of  her  lessee's 
fruitless  expenditures,  for  which  she  was  in  no  wise  responsible,  to 
give  her  lessee  the  first  option  of  a  new  lease.  This  she  was  not  re- 
quired to  do,  and  it  was  wholly  gratuitous  on  her  part,  but  she  did 
not  surrender  or  lose  any  of  her  rights  thereby.  The  reason  that 
the  lessee  gives  for  the  abandonment  of  the  well  and  the  removal  and 
sale  of  his  tools  and  machinery,  being  that  he  was  endeavoring  to  es- 
cape the  process  of  the  courts  of  this  state  to  avoid  unjust  litigation, 
is  not  a  legal  or  justifiable  excuse.  In  the  case  of  Cryan  v.  Ridel- 
sperger,  7  Pa.  Co.  Ct.  R.  473,  an  excuse  that  the  lessee  was  unable  to 
put  down  a  well  on  account  of  the  extremely  cold  weather  was  held 
insufficient  to  prevent  a  forfeiture,  and  yet  it  was  much  more  reason- 
able than  the  one  given  by  the  lessee  in  the  present  case.  No  excuse, 
though  ever  so  good,  could  relieve  from  the  operation  of  a  contract 
which  was  at  an  end  by  virtue  of  its  own  terms.  The  time  the  Garber 
and  Knotts  lease  had  to  run,  in  any  event,  expired  before  the  Steel- 
smith  lease  was  executed,  and  hence  they  have  no  rights  against  the 
latter  lease  and  cannot  attack  it  in  any  manner  for  any  reason. 

For  the  foregoing  reasons  the  decree  complained  of  is  reversed, 
the  lease  known  as  the  "Gartlan  lease,"  bearing  date  the  nth  day  of 
February,  1895,  is  canceled,  and  annulled,  and  the  injunction  origi- 
nally awarded  in  this  case  is  made  perpetual. 


GADBURY  ET  AL  V.  OHIO  &  I.  CONSOL.  NATURAL  & 
ILLUMINATING  GAS  CO. 

1903.     Supreme  Court  of  Indiana.     162  Ind.  9,  67  N.  E.  259. 

_  Action  by  Riley  R.  Gadbury  and  another  against  the  Ohio  &  In- 
diana Consolidated  Natural  &  Illuminating  Gas  Company.  Judg- 
ment for  defendant.  Plaintififs  appealed  to  the  Appellate  Court, 
whence  the  case  is  transferred,  under  Burns'  Rev.  St.  1901,  §  1337J, 
subd.  2.   65  N.  E.  289.   Reversed. 

Gillett,  J. — By  their  second  paragraph  of  complaint,  appellants 
seek  to  quiet  their  title  to  a  certain  tract  of  real  estate,  which  they 
allege  that  they  own  in  fee  simple.  The  cloud  that  they  seek  to  have 
removed  was  occasioned  by  the  execution  of  a  written  contract  by 
them  and  appellee's  grantor,  one  Andrews,  which  contract  is  in  the 
words  and  figures  following- : 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of  which  is 
hereby  acknowledged,  we,  R.  R.  Gadbury  and  J.  A.  Gadbury,  first 
parties,  hereby  grant  unto  J.  S.  Andrews,  second  party,  its  success- 
ors and  assigns,  all  the  oil  and  gas  in  and  under  the  following-  de- 


672  OIL,    GAS    AND    OTHER    MINING    LEASES. 

scribed  premises,  together  with  the  right  to  enter  thereon  at  all 
times  for  the  purpose  of  drilling  and  operating  for  oil,  gas  or  water, 
and  to  erect  and  maintain  all  buildings  and  structures  and  lay  all 
pipes  necessary  for  the  production  and  transportation  of  oil,  gas  or 
water  from  said  premises,  excepting  and  reserving,  however,  to  the 
first  parties,  the  one-sixth  (1-6)  part  of  all  oil  produced  and  saved 
from  said  premises  to  be  delivered  in  the  pipe  line  with  which  sec- 
ond party  may  connect  his  wells,  namely:  All  that  certain  lot  of 
land  situate  in  the  township  of  Licking,  county  of  Blackford,  in  the 
state  of  Indiana,  bound  and  described  as  follows,  to  wit : 

"The  east  half  of  the  northwest  quarter  of  section  thirty-tw^o, 
township  twenty-three,  north,  range  ten,  east,  containing  eighty 
acres,  more  or  less. 

"To  have  and  to  hold  the  above  premises  on  the  following  condi- 
tions :  If  gas  only  is  found,  second  party  agrees  to  pay  one  hundred 
dollars  each  year  for  the  product  of  each  well  while  the  same  is  be- 
ing used  off  the  premises,  and  the  first  party  to  have  gas  free  of 
cost  for  domestic  purposes. 

"Whenever  first  party  shall  request  it,  second  party  shall  bury  all 
oil  and  gas  lines  and  pay  all  damages  done  to  growing  crops  by  rea- 
son of  burying  and  removing  said  pipe  lines. 

"No  wells  shall  be  drilled  nearer  than  two  hundred  feet  to  the 
house  or  barn  on  said  premises,  and  no  well  shall  occupy  more  than 
one  acre.  In  case  no  well  is  completed  within  forty  days  from  this 
date,  then  this  lease  shall  become  null  and  void,  unless  second  party 
shall  pay  to  first  parties  one  dollar  per  day  thereafter  such  comple- 
tion is  delayed.  The  second  party  shall  have  the  right  to  use  suffi- 
cient gas,  oil  or  water  to  run  all  necessary  machinery  for  operating 
said  wells,  and  also  the  right  to  remove  all  its  property  at  any  time. 
It  is  understood  between  the  parties  to  this  agreement  that  all  the 
conditions  between  the  parties  hereto  shall  extend  to  their  heirs,  ex- 
ecutors and  assigns. 

"In  witness  whereof,  the  parties  hereto  have  hereunto  set  their 
hands  and  seals  this  ist  day  of  December,  A.  D.  1897. 

"[Signed]  R.  R.  Gadbury. 

"J.  A.  Gadbury. 
"J.  S.  Andrews." 

Said  paragraph  of  complaint  further  alleges  that  said  contract  was 
assigned  by  said  Andrews  to  said  defendant  on  the  6th  day  of  Janu- 
ary, 1900;  that  there  was  no  consideration  for  the  execution  of  said 
contract  by  plaintiffs,  except  the  income,  rents,  profits,  and  royalties 
referred  to  in  said  instrument ;  that  said  Andrews  completed  a  well 
on  said  premises  on  the  19th  day  of  February,  1898,  and  paid  plain- 
tiffs the  sum  of  $1  per  day  during  the  time  that  completion  of  said 
well  was  delayed  after  40  days  from  the  execution  of  said  contract 
down  to  the  date  last  aforesaid ;  that,  by  the  construction  of  said 
well,  gas  was  found  on  said  premises  in  large  and  paying  quantities ; 


COVENANTS    AND    CONDITIONS.  673 

that,  notwithstanding  the  discovery  of  said  gas  as  aforesaid,  said 
Andrews,  immediately  upon  the  completion  of  said  well,  closed  and 
anchored  the  same,  so  as  to  prevent  any  gas  from  escaping  there- 
from, and  neither  said  iVndrews  nor  said  defendant,  nor  any  other 
person  or  corporation,  has  produced  any  gas  or  oil  on  or  from  said 
premises,  nor  have  they,  or  either  of  them,  used  or  transported  any 
gas  whatever  from  said  premises;  that  neither  said  Andrews  nor 
said  defendant  has  ever  paid  the  plaintiffs  anything  for  the  product 
of  said  well,  or  for  the  privilege  of  holding  said  premises  after  the 
completion  of  said  well,  and  that  the  defendant  since  the  date  of 
said  assignment  has  held,  and  still  claims  the  right  to  hold,  said 
premises  without  developing  the  same,  and  without  producing  any 
oil  or  gas  therefrom,  and  without  paying  the  plaintiffs  any  consider- 
ation wdiatever  for  the  privilege  of  so  doing,  and  without  paying  the 
plaintiffs  anything  whatever  for  the  gas  and  oil  which  could  be  pro- 
duced upon  said  premises ;  that,  during  all  of  the  time  since  the  exe- 
cution of  said  lease,  gas  and  oil  have  existed  in  and  under  said  prem- 
ises in  large  and  paying  quantities,  and  still  continue  so  to  exist,  all 
of  which  was  known  to  said  Andrews  and  said  defendant  during  all 
the  time  since  the  execution  of  said  lease.  It  is  further  alleged  in 
said  paragraph  of  complaint  that  said  Andrews  and  said  defendant 
failed,  neglected,  and  refused  to  give  or  furnish  plaintiffs,  or  either 
of  them,  with  any  gas  for  domestic  use ;  that  on  the  28th  day  of  De- 
cember, 1899,  plaintiff's  declared  said  contract  forfeited,  and  all 
rights  thereunder  terminated,  by  reason  of  a  failure  to  develop  said 
premises  and  to  produce  gas  or  oil  therefrom,  and  that  plaintiffs  did 
then  and  there  take  possession  of  said  well,  and  connect  the  same 
with  their  dwelling  house  on  said  premises ;  and  that  said  contract  is 
a  cloud  upon  plaintiffs'  title.  Prayer  that  said  title  be  quieted.  A 
demurrer  was  sustained  to  said  paragraph  of  complaint,  and  an  ex- 
ception was  duly  reserved ;  and  from  a  final  judgment  that  appellants 
take  nothing,  they  appeal,  and  assign  error  based  on  said  ruling. 

The  grant  in  question,  upon  its  face,  appears  to  be  a  mere  option 
to  the  grantee.  Every  express  undertaking  upon  his  part  is  subsid- 
iary to  the  exercise  of  the  option  to  explore  and  develop  the  real  es- 
tate. The  question  arises,  however,  whether  obligations  to  explore 
and  develop  the  property  may  not  be  implied,  and  whether  such  un- 
dertakings, if  implied,  are  not  such  an  essential  part  of  the  contract 
as  to  be  treated  as  conditions.  An  implied  condition  may  be  insep- 
arably annexed  to  a  grant,  from  its  essence  and  constitution,  al- 
though no  condition  be  expressed  in  words.  2  Black.  Com.  p.  ^152; 
Petroleum  Co.  v.  Coal,  etc.,  Co.,  89  Tenn.  381,  18  S.  W.  65.  In  de- 
termining whether  a  condition  is  to  be  implied,  it  is  important  to 
note  that  the  substantial  consideration  which  moves  _  a  grantor  to 
execute  such  a  grant  is  the  hope  of  profits  or  royalties  if  oil  or  gas  is 
discovered.  Even  if  the  grantee  in  this  case  had  paid  the  stated  con- 
sideration of  $1— a  technically  valuable  consideration — yet  we  must 

43 — Mining  L.wv 


674  OIL,    GAS    AND   OTHER    MINING    LEASES, 

construe  the  instrument  with  the  fact  in  view  that  a  more  substantial 
reason  or  reasons  prompted  the  making  of  the  grant.  Huggins  v. 
Daley,  40  C.  C.  A.  12,  99  Fed.  606,  48  L.  R.  A.  320;  Federal  Oil  Co. 
V.  Western  Oil  Co.  (C.  C.)  112  Fed.  373.  In  an  ordinary  agricul- 
tural lease,  where  the  rent  is  payable  in  kind,  it  would,  of  course,  be 
implied  that  the  tenant  would  farm  the  land ;  and  the  requirement  is 
implied  that  lessees  in  mineral  leases,  upon  royalties,  will  develop 
the  property,  if  exploration  warrants  it,  where  the  minerals  are  sta- 
ble, although  the  only  result  of  a  delay  in  operating  would  be  to  post- 
pone the  receipt  of  profits  or  royalties.  Island  Coal  Co.  v.  Combs,  152 
Ind.  379,  53  N.  E.  452 ;  McKnight  v.  Nat.  Gas  Co.,  146  Pa.  185,  23 
Atl.  164,  28  Am.  St.  Rep.  790.  If  a  duty  to  operate  is  to  be  implied 
in  such  cases,  there  is  much  more  reason  for  the  implication  in  a 
grant  of  the  right  to  operate  for  oil  and  gas  upon  a  royalty,  owing 
to  the  migratory  habit  of  the  fluids.  "Oil  leases,"  it  was  declared 
in  McKnight  v.  Nat.  Gas  Co.,  supra,  "must  be  construed  with  refer- 
ence to  the  known  characteristics  of  the  business."  As  said  in  an- 
other Pennsylvania  case :  "The  nature  of  oil  and  gas,  the  pressure 
of  the  superincumbent  rocks,  and  the  vagrant  habit  of  both  fluids  un- 
der the  influence  of  this  pressure,  enter  into  the  contemplation  of 
both  parties  to  such  an  arrangement."  Kleppner  v.  Lemon,  176  Pa. 
502,  35  Atl.  109.  In  grants  of  the  character  in  question,  the  title  is 
inchoate,  and  for  the  purpose  of  exploration  only,  until  oil  or  gas  is 
found  in  quantities  warranting  operation ;  and  while  the  courts  mani- 
fest a  disposition  to  protect  the  grantee  at  this  stage,  by  treating  his 
interest  as  no  longer  postponed  to  the  happening  of  a  condition  pre- 
cedent, yet  it  is  thoroughly  settled  that  he  cannot  omit  to  develop  the 
property  and  hold  the  grant  for  speculative  purposes  purely.  Parish 
Fork  Oil  Co.  v.  Bridgewater  Gas  Co.,  51  W.  Va.  583,  42  S.  E.  655 ; 
Bluestone  Coal  Co.  v.  Bell,  38  W.  Va.  297,  18  S.  E.  493 ;  Guffy  v. 
Hukill,  34  W.  Va.  49,  II  S.  E.  754,  8  L.  R.  A.  759,  26  Am.  St.  Rep. 
901  ;  Ray  v.  Nat.  Gas  Co.,  138  Pa.  576,  20  Atl.  1065,  12  L.  R.  A.  290, 
21  Am.  St.  Rep.  922 ;  Venture  Oil  Co.  v.  Fretts,  152  Pa.  451,  25  Atl. 
732 ;  Kleppner  v.  Lemon,  supra ;  Huggins  v.  Daley,  40  C.  C.  A.  12, 
99  Fed.  606,  48  L.  R.  A.  320;  Federal  Oil  Co.  v.  Western  Oil  Co. 
(C.  C.)  112  Fed.  373;  Hawkins  v.  Pepper,  117  N.  C.  407,  23  S.  E. 

434- 

The  duty  to  develop  the  property  upon  the  discovery  of  oil  or  gas 
in  paying  quantities  is  not  to  be  regarded  as  a  mere  implied  covenant, 
but,  in  a  case  like  this,  where  practically  the  whole  consideration 
must  depend  upon  the  implied  undertaking,  is  to  be  treated  as  a  con- 
dition subsequent.  Conditions  subsequent  are  not  ordinarily  favored, 
"because,"  as  declared  by  Prof.  Kent,  "they  tend  to  destroy  estates, 
and  the  rigorous  exaction  of  them  is  a  species  of  summum  jus,  and 
in  many  cases  hardly  reconcilable  with  conscience."  4  Kent's  Com. 
p.  *I29.  Accordingly,  it  has  been  declared  in  unrestricted  terms  that 
equity  will  not  lend  its  aid  to  enforce  a  forfeiture.    Where  there  has 


COVENANTS    AND    CONDITIONS.  675 

been  a  cause  of  forfeiture,  followed  by  an  entry  upon  the  part  of  the 
grantor,  so  that  the  title  has  been  lost,  it  is  not  strictly  the  enforcing 
of  a  forfeiture  for  a  court  of  equity  to  decree  a  cancellation  of  the 
instrument.  McClellan  v.  Coffin,  93  Ind.  456 ;  Birmingham  v.  Lesan, 
'JJ  Me.  494,  I  Atl.  151.  But  even  in  a  case  of  this  kind,  where  the 
circumstances  do  not  permit  of  an  entry,  the  forfeiture  may  be,  in 
efifect,  enforced  by  suit  in  equity.  Forfeitures  are  usually  against 
conscience  and  without  equity,  and  it  is  for  these  reasons  that  courts 
of  chancery  ordinarily  refuse  relief  in  such  cases,  but  an  exception  to 
the  rule  must  exist  where  it  be  against  equity  to  permit  the  defend- 
ant to  longer  assert  his  title.  Leach  v.  Leach,  4  Ind.  628,  58  Am. 
Dec.  642:  McClellan  v.  Coffin,  93  Ind.  456;  Richter  v.  Richter,  iii 
Ind.  456,  12  N.  E.  698.  In  the  case  last  cited  a  stipulation  was  treated 
as  a  condition  subsequent,  rather  than  a  covenant,  and  the  grantor's 
title  quieted,  because  of  the  lack  of  another  remedy.  In  the  case  in 
hand  specific  performance  could  not  be  enforced  (Louisville,  etc.,  R. 
Co.  V.  Bodenschatz,  141  Ind.  251,  39  N.  E.  703)  ;  and  the  completion 
of  the  first  well  having  cut  off  the  liquidated  damages  of  $1  per  day 
for  non-completion  and  as  no  gas  has  been  disposed  of  off  the  prem- 
ises, there  remains  no  measure  of  damages,  for,  while  the  damages 
would  be  substantial,  they  would  be  speculative.  Foster  v.  Elk  Fork, 
etc.,  Co.,  32  C.  C.  A.  560,  90  Fed.  178;  Federal  Oil  Co.  v.  Western 
Oil  Co.,  (C.  C.)  112  Fed.  373.  The  lack  of  any  other  remedy,  and 
the  danger  that  the  gas  might  be  withdrawn  through  wells  on  other 
lands,  makes  a  case  of  this  kind  appeal  to  the  conscience  of  the  chan- 
cellor, and  calls  upon  him  to  enforce  the  incurred  forfeiture  by  re- 
moving the  cloud  from  the  title.  In  Munroe  v.  Armstrong,  96  Pa. 
307,  it  was  said  concerning  a  gas  and  oil  lease  :  "Forfeiture  for  non- 
development  or  delay  is  essential  to  private  and  public  interests  in 
relation  to  the  use  and  alienation  of  property.  In  such  cases  as  this, 
equity  follows  the  law.  In  general,  equity  abhors  a  forfeiture,  but 
not  when  it  works  equity  and  protects  a  landowner  from  the  laches 
of  a  lessee  whose  lease  is  of  no  value  till  developed." 

The  next  question  that  arises  is  whether  the  paragraph  of  complaint 
in  question  sufficiently  shows  that  the  interest  conveyed  by  appellants 
to  said  grantee  Andrews  has  been  forfeited.  An  estate  is  not  per  se 
forfeited  by  the  breach  of  a  condition  subsequent.  Cross  v.  Carson, 
8  Blackf.  138,  44  Am.  Dec.  743  ;  Thompson  v.  Thompson,  9  Ind.  323, 
68  Am.  Dec.  638.  It  was  a  rule  of  the  common  law  that,  where  an 
estate  com.menced  by  livery,  it  could  not  be  determined  before  entry. 
4  Kent's  Com.  p.  *I28.  In  Indiana  a  demand  of  possession,  based 
on  the  breach,  followed  by  a  refusal,  is  equivalent  to  an  entry  on  the 
premises.  Clark  v.  Holton,  57  Ind.  564;  Indianapolis,  etc.,  R.  Co. 
V.  Hood,  66  Ind.  580 ;  Cory  v.  Cory,  86  Ind.  567 ;  Preston  v.  Bos- 
w^orth,  153  Ind.  458,  55  N.  E.  224,  74  Am.  St.  Rep.  313.  Without 
determining  whether  this  rule  as  to  an  entry  should  be  applied  to  the 
grant  of  an  easement  or  of  a  chattel  interest  (Roberts  v.  Davey,  i 


6^6  OIL,    GAS    AND   OTHER    MINING    LEASES. 

Nev.  &  Man.  443),  or  whether  it  is  enough  for  the  grantor  in  such 
case  to  evince  unequivocally  his  election,  we  think  that  it  may  be  af- 
firmed in  this  case  that  the  forfeiture  is  sufficiently  shown.  Here  the 
grant  did  not  dispossess  the  appellants,  and  they  could  not  enter  upon 
themselves ;  and,  besides,  the  failure  for  so  long  a  time,  without  ap- 
parent excuse,  to  develop  the  property,  prima  facie  authorized  appel- 
lants, without  demand,  to  treat  the  grant  as  abandoned.  See  Richter 
V.  Richter,  iii  Ind.  456,  12  N.  E.  698;  Cree  v.  Sherfy,  138  Ind.  354, 
37  N.  E.  787;  Island  Coal  Co.  v.  Combs,  152  Ind.  379,  53  N.  E.  452; 
Huggins  V.  Dalev,  40  C.  C.  A.  12,  99  Fed.  608,  48  L.  R.  A.  320; 
Guffy  V.  Hukill,  34  W.  Va.  49.  1 1  S.  E.  754,  8  L.  R.  A.  759,  26  Am. 
St.  Rep.  901.  As  to  election  by  suit,  see  Carnahan  v.  Tousey,  93 
Ind.  561. 

The  facts  stated  in  the  second  paragraph  of  complamt,  which  stand 
as  admitted  by  the  demurrer,  were  such  as  to  require  the  court  below 
to  aid  appellants,  by  means  of  its  jurisdiction  to  decree  cancellation 
and  to  remove  clouds  from  titles.  The  judgment  is  reversed,  with 
an  instruction  to  the  court  below  to  overrule  the  demurrer  to  the  sec- 
ond paragraph  of  complaint. 


AYE  ET  AL.  V.  PHILADELPHIA  CO. 

1899.     Supreme  Court  of  Pennsylvania. 
193  Pa.  St.  451,  44  Atl.  555. 

Action  of  ejectment  by  Fred  Aye  and  others  against  the  Philadel- 
phia Company.  There  was  a  judgment  for  plaintiffs,  and  defendant 
appeals.    Reversed. 

The  following  is  a  history  of  the  case  from  appellant's  paper  book : 
"This  is  an  action  of  ejectment  upon  an  oil  and  gas  lease,  the  parties 
plaintiff  and  defendant  claiming,  respectively,  under  two  different 
leases  made  by  Campbell,  the  owner  of  the  land.  The  defendant 
went  into  possession  of  the  land  in  1894,  and  drilled  a  well ;  having 
previously  acquired,  by  assignment,  a  lease  made  by  Campbell  in 
1891  to  Bailey.  This  action  was  brought  April  3,  1897 ;  the  plain- 
tiffs' claim  being  based  upon  a  prior  lease  from  Campbell,  dated  July 
II,  1887.  When  the  defendant  acquired  the  Bailey  lease  and  entered 
into  possession,  the  plaintiffs'  lease  had  not  been  recorded,  nor  had 
the  plaintiffs  at  any  time,  between  1887  and  1894,  entered  upon  the 
land,  or  done  anything  whatever  towards  drilling  or  developing  the 
property  for  the  production  of  oil  or  gas,  nor  had  they  paid  any 
rentals  whatever  to  Campbell.  The  Bailey  lease,  under  which  de- 
fendant claims,  contained  a  clause  which  gave  notice  that  the  earlier 
lease  under  which  plaintiffs  claim  had  been  made,  but  without  affirm- 
ing its  existence  or  validity  at  the  date  of  the  Bailey  lease.    The  de- 


COVENANTS    AND    CONDITIONS.  677 

fendant's  contention  was  that  the  plaintiffs'  rights  under  the  first 
lease  had  been  lost  or  abandoned  by  failure  to  operate  thereunder 
with  reasonable  diligence.  At  the  trial  the  court  gave  the  jury 
peremptory  instructions  to  find  in  favor  of  the  plaintiffs,  and  the  de- 
fendant appealed." 

Mitchell,  J. — The  lease  to  Aye  and  Martin  being  referred  to  in 
the  lease  from  Campbell  to  Bailey,  the  appellant,  as  assignee  of  Bai- 
ley, must  be  held  to  have  taken  with  notice.  The  recital  of  the  prior 
lease,  however,  was  not  an  affirmance  by  Campbell  of  its  continuing 
validity,  but  a  disclaimer  by  him  of  responsibility  on  that  subject.  It 
was  a  refusal  to  declare  or  enforce  a  forfeiture  himself,  but  a  trans- 
fer of  his  right  in  that  regard,  whatever  it  might  turn  out  to  be,  to 
appellant,  which  assumed  the  risk.  Its  entry  and  commencement  of 
operations  on  the  land  were  an  enforcement  of  a  forfeiture  for  aban- 
donment, if  Campbell  had  that  right.  This  depends  on  the  circum- 
stances. By  their  lease  from  Campbell,  the  appellees  covenanted  to 
complete  a  test  well  in  the  vicinity  within  six  months,  and,  if  oil 
should  be  found  in  paying  quantities,  to  complete  a  well  on  the  leased 
premises  within  the  next  six  months,  or  pay  a  yearly  rental  per  acre 
for  the  delay.  The  royalty  reserved  as  rent  by  the  lessor  was  one- 
eighth  of  the  oil  produced.  The  lease  was  made  July  ii,  1887.  The 
test  well  was  put  down  on  a  farm  in  the  vicinity,  but  produced  no  oil. 
A  second  well  was  drilled  on  another  farm,  with  like  result,  and  op- 
erations then  ceased,  without  any  well  on  the  leased  premises.  On 
October  2,  1891,  Campbell  leased  to  Bailey,  and  on  June  19,  1892, 
Bailey  assigned  his  lease  to  the  appellant.  The  lease  from  Campbell 
to  appellees,  it  will  be  seen,  contained  express  covenants  what  the 
lessees  should  do  in  a  certain  event,  but  made  no  provision  for  the 
contingency  of  the  test  well  proving  dry,  which  is  what  actually  hap- 
pened. In  such  case,  it  becomes  necessary  to  inquire  what  covenants, 
if  any,  are  implied.  It  was  held,  as  far  back  as  Watson  v.  O'Hern,  6 
Watts,  362,  that  a  lease  of  a  stone  quarry,  in  consideration  that  the 
lessee  shall  pay  a  certain  price  per  perch  for  all  stone  taken  out, 
though  called  by  the  parties  a  "privilege  and  liberty,"  is  a  contract  by 
the  lessee  that  the  quarry  shall  be  worked,  and  failure  to  do  so  is  an 
actionable  breach.  The  rule  is  thus  stated  by  the  present  chief  jus- 
tice in  Koch  &  Balliet's  Appeal,  93  Pa.  St.  434,  442 :  "Where  a  right 
to  mine  iron  ore  or  other  minerals  is  granted  in  consideration  of  the 
reservation  of  a  certain  proportion  of  the  product  to  the  grantor,  the 
law  implies  a  covenant  on  the  part  of  the  grantee  to  work  the  mine 
in  a  proper  manner  and  with  reasonable  diligence,  so  that  the  grantor 
may  receive  the  compensation  or  income  which  both  parties  must 
have  had  in  contemplation  when  the  agreement  was  entered  into." 
So,  in  Ray  v.  Gas  Co.,  138  Pa.  St.  576,  589,  20  Atl.  1065,  it  was  said 
by  our  late  Brother  Clarke :  "While  the  obligation  on  the  part  of 
the  lessee  to  operate  is  not  expressed  in  so  many  words,  it  arises  by 
necessary  implication.     *     *     *     If  a  farm  is  leased  for  farming 


678  OIL,    GAS    AND   OTHER    MINING    LEASES. 

purposes,  the  lessee  to  deliver  to  the  lessor  a  share  of  the  crops,  in 
the  nature  of  rent,  it  would  be  absurd  to  say,  because  there  was  no 
express  engagement  to  farm,  that  the  lessee  was  under  no  obligation 
to  cultivate  the  land.  An  engagement  to  farm  in  a  proper  manner, 
and  to  a  reasonable  extent,  is  necessarily  implied."  That  was  the 
case  of  an  oil  and  gas  lease,  and  it  has  been  said  that  the  doctrine  is 
peculiarly  applicable  to  such  leases,  owing  to  the  nature  of  the  prod- 
uct. McKnight  v.  Gas  Co.,  146  Pa.  St.  185,  23  Atl.  164;  Oil  Co.  v. 
Fretts,  152  Pa.  St.  451,  25  Atl.  732. 

The  rule  in  regard  to  contracts  is  that,  where  the  parties  have  ex- 
pressly agreed  on  what  shall  be  done,  there  is  no  room  for  the  impli- 
cation of  anything  not  so  stipulated  for,  and  this  rule  is  equally  ap- 
plicable to  oil  and  gas  leases  as  to  other  contracts.  There  is  nothing 
peculiar  about  them  in  this  respect.  But  here  the  parties  have  pro- 
vided for  a  test  well,  and  for  what  shall  be  done  if  it  produces  oil  in 
paying  quantities.  But  the  other  contingency,  that  it  proves  dry,  is 
not  provided  for,  and  it  is  the  omitted  case  that  has  occurred.  The 
authorities  are  uniform  that,  under  such  circumstances,  there  is  an 
implied  obligation  on  the  lessee  to  proceed  with  the  exploration  and 
development  of  the  land  with  reasonable  diligence,  according  to  the 
usual  course  of  the  business,  and  a  failure  to  do  so  amounts  to  an 
abandonment  which  will  sustain  a  re-entry  by  the  lessor.  Abandon- 
ment is  a  question  of  fact,  to  be  determined  by  the  acts  and  inten- 
tions of  the  parties.  An  unexplained  cessation  of  operations  for  the 
period  involved  in  this  case  gives  rise  to  a  fair  presumption  of  aban- 
donment, and,  standing  alone  and  admitted,  would  justify  the  court 
in  declaring  an  abandonment  as  matter  of  law.  But  it  may  be  capa- 
ble of  ex,pianation,  and  is  therefore  usually  a  question  for  the  jury 
on  the  evidence  of  the  acts  and  declarations  of  the  parties.  Stage  v. 
Boyer,  183  Pa.  St.  560,  38  Atl.  1035.  It  should  have  been  so  left  to 
them  in  this  case.    Judgment  reversed,  and  venire  de  novo  awarded. 


BREWSTER  v.  LANYON  ZINC  CO. 

1905.     Circuit  Court  of  Appeals,  Eighth  Circuit. 
72  C.  C.  A.  213,  140  Fed.  801. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Kansas. 

This  was  a  suit  in  equity  to  establish,  as  matter  of  record,  the  forfeiture 
of  an  oil  and  gas  lease  and  to  cancel  the  same  as  a  cloud  upon  complainant's 
title.  The  suit  was  commenced  December  31,  1901,  in  the  district  court  of 
Allen  county,  Kan.,  and  was  removed  into  the  Circuit  Court  on  defendant's 
petition.  To  an  amended  bill  filed  February  20,  1904,  defendant  demurred, 
assigning  as  causes  therefor  want  of  equity  in  the  bill  and  the  existence  of 


COVENANTS    AND    CONDITIONS.  6/9 

a  full,  complete,  and  adequate  remedy  at  law.  The  demurrer  was  sustained, 
and,  as  complainant  declined  to  amend,  a  decree  was  entered  dismissing  the 
bill.     Complainant  appeals.     The  facts  stated  in  the  amended  bill  are  these: 

The  lease  was  made  by  complainant  to  the  Palmer  Oil  &  Gas  Company, 
October  28,  1895,  and  is  as  follows: 

"In  consideration  of  the  sum  of  one  dollar,  the  receipt  of  which  is  hereby 
acknowledged,  and  of  the  covenants  and  agreements  hereinafter  contained, 
M.  L.  Brewster  (Widow),  first  party,  hereby  grants  unto  the  Palmer  Oil  & 
Gas  Company  of  Fostoria,  Ohio,  second  party,  successors  and  assigns,  all  the 
oil  and  gas  under  the  following  described  premises,  together  with  the  right 
to  enter  thereon  at  all  times  for  the  purpose  of  drilling  and  operating  for 
oil,  gas,  or  water,  to  erect,  maintain,  and  remove  all  buildings,  structures, 
pipes,  pipe  lines,  and  machinery  necessary  for  the  production  and  transpor- 
tation of  oil,  gas,  and  water :  Provided,  that  the  first  party  shall  have  the 
right  to  use  said  premises  for  farming  purposes  except  such  part  as  is 
actually  occupied  by  second  party,  nameh%  a  lot  of  land  situated  in  the  town- 
ship of  lola  and  Elm,  county  of  Allen,  in  the  state  of  Kansas,  and  described 
as  follows,  to  wit :  N.  %  of  N.  W.  V-t  of  section  2—25—18 ;  also  S.  V2  of  S. 
E.  %  of  section  5 — 25 — 19,  less  7%  acres  off  the  west  end ;  also  S.  W.  V-t  of 
section  21 — 2A — 19  section  number  2 — 5 — 21 — township  number  25 — ^24,  range 
number  18 — 19,  containing  three  hundred  and  twelve  and  50-100  acres  more 
or  less. 

"The  above  grant  was  made  on  the  following  terms:  (1)  Second  party 
agrees  to  drill  a  well  upon  said  premises  within  two  years  from  this  date,  or 
thereafter  pay  to  the  first  party  seventy-eight  dollars  annually  until  said  well  is 
drilled,  or  the  property  hereby  granted  is  conveyed  to  the  first  party.  (2) 
Should  oil  be  found  in  paying  quantities  upon  the  premises  second  party 
agrees  to  deliver  to  first  party  in  tank  or  in  the  pipe  line  with  which  it  may 
connect  the  well  or  wells  the  one-tenth  part  of  all  the  oil  produced  and  saved 
from  said  premises.  (3)  Should  gas  be  found,  the  second  party  agrees  to  pay 
first  party  fifty  dollars  annually  for  every  well  from  which  gas  is  used  off 
the  premises.  (4)  The  first  party  shall  be  entitled  to  enough  gas  free  of 
cost  for  domestic  use  in  the  residence  on  said  premises  as  long  as  second 
party  shall  use  gas  ofif  said  premises  under  this  contract,  but  shall  lay  and 
maintain  the  service  pipes  at  his  own  expense  and  use  the  gas  at  his  own 
risk.  The  said  party  of  the  second  part  further  to  have  the  privilege  of  ex- 
cavating for  water  and  of  using  sufficient  water,  gas,  and  oil  from  the  prem- 
ises herein  leased  to  run  the  necessary  engines  for  the  prosecution  of  said 
business.  (5)  Second  party  shall  bury,  when  requested  so  to  do  by  the  first 
party,  all  gas  lines  used  to  conduct  gas  off  said  premises,  and  pay  all  dam- 
ages to  timber  and  crops  b}'  reason  of  drilling  or  the  burying,  repairing,  or 
re^moval  of  lines  of  pipe  over  the  said  premises.  (6)  No  well  shall  be  drilled 
nearer  than  three  hundred  feet  to  any  building  on  said  premises,  nor  occupy 
more  than  one  acre.  (7)  Second  party  may  at  any  time  remove  all  his  prop- 
erty and  reconvey  the  premises  hereby  granted,  and  thereupon  this  instrument 
shall  be  null  and  void.  (8)  A  deposit  to  the  credit  of  lessor  in  the  Bank  of 
Allen  Count}',  to  the  account  of  any  of  the  money  payments  herein  provided 
for  shall  be  a  payment  under  the  terms  of  this  lease.  (9)  If  no  well  shall 
be  drilled  upon  said  premises  within  five  years  from  this  date,  second  party 
agrees  to  reconvey,  and  thereupon  this  instrument  shall  be  null  and  void. 
(10)  A  failure  of  second  party  to  comply  with  any  of  the  above  conditions 
renders  this  lease  null  and  void." 

The  lease  was  assigned  in  February,  1899,  to  Thomas  L.  Hughes,  and  he,  in 
March  following,  assigned  it  to  defendant.  It  covered  three  separate  and 
distinct  tracts.  In  June,  1899,  the  complainant  sold  and  conveyed  the  tract  in 
section  2  to  one  Holmes,  who  in  July  following  sold  and  conveyed  it  to  the 
Tola  Portland  Cement  Company,  which  is  not  a  party  to  the  suit.  Complain- 
ant continues  to  own  the  tracts  in  sections  5  and  21,  and  has  actual  possession 


680  OIL,    GAS    AND    OTHER    MIXING    LEASES. 

thereof,  save  as  defendant  may  have  such  occupancy  of  a  portion  of  the  tract 
in  section  5  as  is  incident  to  the  operation  of  the  gas  well  thereon.  No  well 
was  drilled  during  the  first  four  years  after  the  date  of  the  lease,  but  the 
stipulated  sum  of  $78  was  paid  to  complainant  during  each  of  the  third  and 
fourth  years.  In  August,  1900,  during  the  fifth  year,  a  well  was  drilled  on 
the  tract  in  section  5  from  which  gas  was  obtained  in  paying  quantity.  Gas 
from  this  well  has  ever  since  been  used  off  the  premises  by  the  defendant  in 
its  business  of  smelting  and  refining  ores.  When  the  suit  was  commenced, 
which  was  14  months  after  the  expiration  of  the  5-year  period  and  16  months 
after  the  drilling  of  the  single  well,  nothing  more  had  been  done  by  defendant! 
in  compliance  with  the  terms  of  the  lease,  express  or  implied,  save  that  the 
required  annual  payment  of  $50  for  the  gas  so  used  off  the  premises  may 
have  been  made — a  matter  in  respect  of  which  the  bill  is  uncertain.  Many 
oil  and  gas  wells  have  been  drilled  in  the  territory  adjacent  to  and  sur- 
rounding the  tracts  leased,  which  furnish  oil  and  gas  in  paying  quantities, 
and  new  wells  are  being  drilled  and  operated  in  that  territory.  These  wells 
are  so  near  to  the  tracts  leased  as  to  drain  the  same  of  a  good  portion  of  the 
oil  and  gas  therein,  and  therefore  they  render  the  lease  of  much  less  value 
to  complainant  than  it  would  have  been  had  defendant  proceeded  with  reason- 
able diligence  to  drill  other  wells  and  to  operate  the  same  for  the  mutual 
benefit  of  the  parties.  The  extent  of  this  drainage  is  not  susceptible  of 
reasonable  ascertainment,  and  therefore  the  consequent  injury  to  complain- 
ant cannot  be  adequately  compensated  in  damages.  Defendant  has  at  all 
times  insisted,  and  still  insists,  that  by  drilling  the  single  well  it  acquired 
the  right  to  all  the  oil  and  gas  in  the  leased  tracts,  and  also  the  right  to 
hold  the- lease  indefinite!}-,  without  further  development  or  doing  more  than 
paying  annually  $50  for  the  gas  from  that  well  used  off  the  premises.  It  has 
been  and  is  defendant's  purpose  to  hold  the  lease  either  for  speculative 
purposes  or  to  prevent  the  oil  and  gas  from  being  used  by  its  rivals  in  busi- 
ness. Seven  days  before  the  commencement  of  the  suit  complainant  notified 
defendant  in  writing  that  she  elected  to  declare  the  lease  terminated,  null, 
and  void,  and  demanded  a  surrender  and  cancellation  of  the  same ;  but  the 
demand  was  not  complied  with.  As  matter  of  convenience  the  defendant 
will  generally  be  spoken  of  as  the  lessee,  although  it  is  in  fact  an  assignee. 

Before  Van  Devanter,  Hook  and  Adams,  Circuit  Judges. 

Van  Devanter,  Circuit  Judge.^ — *     *     "^^ 

Other  allegations  are  to  the  effect  that  the  lease  was  with- 
out consideration,  save  the  payment  of  $i,  which,  though  tech- 
nically valuable,  was  merely  nominal,  and  that  its  terms  were 
altogether  unconscionable.  These  allegations,  even  if  not  withdrawn 
by  counsel's  concession  that  "complainant's-  rights  were  fully  pro- 
tected,'' are  essentially  restrained  by  the  provisions  of  the  lease  and 
by  other  allegations  in  the  bill.  The  lease  recites  that  it  is  made 
in  consideration  "of  the  covenants  and  agreements  hereinafter  con- 
tained," as  well  as  of  the  $i  then  paid,  and  this  recital  is  followed  by 
several  covenants  and  agreements  on  the  part  of  the  lessee,  the  per- 
formance of  which  would  be  of  substantial,  if  not  great,  benefit  to 
the  lessor,  and  would  be  at  substantial,  if  not  great,  cost  to  the  lessee. 
There  is  a  further  stipulation  to  the  eft"ect  that  the  lessee's  failure  to 
comply  with  any  of  these  covenants  or  agreements  shall  render  the 
lease  void.     It  appears  from  the  bill  that  when  the  lease  was  made 

'  Parts  of  the  opinion   are  omitted. 


COVENANTS    AND    CONDITIONS.  68l 

the  development  of  oil  and  gas  in  that  field  was  in  its  infancy.  The 
field  was  practically  undeveloped  and  its  extent  was  unknown. 
Experience  in  other  oil  and  gas  fields  had  demonstrated  that  wells 
drilled  in  the  vicinity  of  producing  wells  were  not  infrequently  un- 
productive. The  only  method  of  certainly  determining  whether  or 
not  particular  lands  contained  oil  or  gas  in  paying  quantity  was 
by  drilling  thereon  to  a  considerable  depth.  This  was  attended  with 
great  expense.  The  lease  placed  the  hazard  incident  to  the  uncer- 
tainty of  the  undertaking  on  the  lessee.  It  was  to  pay  the  entire  ex- 
pense and  was  to  bear  the  loss  if  the  undertaking  resulted  in  failure. 
In  these  circumstances  it  cannot  be  said  that  the  terms  of  the  lease 
were  unconscionable.    *    *    * 

The  position  is  taken  in  the  bill  that  by  reason  of  the  clause  which 
declares :  "Second  party  [the  lessee]  may  at  any  time  remove  all  his 
property  and  reconvey  the  premises  hereby  granted,  and  thereupon 
this  instrument  shall  be  null  and  void" — the  lease  was  wanting  in 
mutuality,  was  determinable  at  the  will  of  the  lessee,  and  was 
therefore  equally  determinable  at  the  will  of  the  lessor.  The  position 
is  not  sound.  Although  the  parties,  with  the  sanction  of  a  general 
practice,  denominated  the  instrument  a  "lease,"  strictly  speaking  it 
was  not  such,  but  was  more  in  the  nature  of  a  grant  in  prsesenti  of  all 
the  oil  and  gas  in  the  lands  described — these  minerals  being  part  of 
the  realty — with  the  right  to  enter  and  search  for  them,  and  to  mine 
and  remove  them  when  found.    Lanyon  Zinc  Co.  v.  Freeman  (Kan.) 

75  Pac.  995 ;  Dickey  v.  Coffey ville  Vitrified  Brick  &  Tile  Co.  (Kan.) 

76  Pac.  398.  Because,  however,  of  the  designation  given  to  the  in- 
strument by  the  parties,  it  is  here  spoken  of  and  treated  as  a  lease. 
It  runs  to  the  lessee,  its  successors,  and  assigns,  is  without  limitation 
as  to  time,  and  plainly  shows  that  it  is  designed  to  be  perpetual, 
if  the  oil  or  gas  shall  continue,  and  the  lessee  and  those  claiming 
under  it  shall  fulfill  its  stipulations.  True,  it  was  made  and  accepted 
upon  certain  conditions,  one  of  which  is  that  the  premises  may  be 
reconveyed  at  any  time  at  the  option  of  the  lessee ;  but  that  does  not 
make  the  estate  which  it  creates  a  mere  tenancy  at  will  within  the 
operation  of  the  common-law  rule  that  an  estate  at  the  will  of  one 
party  is  equally  at  the  will  of  the  other.  That  rule  is  without  appli- 
cation to  a  lease  for  a  defined  and  permissible  term,  but  which  re- 
serves to  the  lessee  an  option  to  terminate  it  before  the  expiration 
of  the  term.  Archbold's  Landlord  and  Tenant,  92 ;  Dann  v.  Spur- 
rier, 3  Bos.  &  Pul.  399;  Doe  V.  Dixon,  9  East.  15.  The  present  lease 
is  of  this  type.  It  is  essentially  one  in  perpetuity.  Such  a  term  is 
permissible  in  the  state  of  Kansas,  where  the  creation  of  leaseholds 
in  real  property  is  almost  entirely  a  matter  of  contract  between  the 
parties.  Dickey  v.  Cofifeyville  Vitrified  Brick  &  Tile  Co.,  supra; 
Effinger  v.  Lewis,  32  Pa.  367.  The  option  reserved  to  the  lessee, 
was  not  designed  to  convert  the  estate,  as  otherwise  defined,  into  a 
mere  tenancy  at  will,  or  to  make  it  determinable  at  any  time  at  the 


682  OIL,    GAS    AND   OTHER    MINING   LEASES. 

Option  of  the  lessor.  The  lease  expresses  the  intention  of  the  parties, 
and,  no  rule  of  law  forbidding,  that  intention  is  controlling^.  The 
consideration  of  $i,  the  receipt  of  which  was  acknowledged,  al- 
though small,  was  yet  sufficient  to  make  the  lease  effective  and  to 
support  every  stipulation  in  it  favorable  to  the  lessee,  including  the 
option  to  surrender  it  at  any  time.  Brown  v.  Fowler,  65  Ohio  St. 
507,  525,  6^  N.  E.  y6;  Gas  Co.  v.  Eckert,  70  Ohio  St.  127,  135,  71 
N.  E.  281;  Davis  v.  Wells,  104  U.  S.  159,  168,  26  L.  Ed.  686; 
Allegheny  Oil  Co.  v.  Snyder,  45  C.  C.  A.  604,  608,  106  Fed.  764, 
y6y.  Resting,  therefore,  upon  an  executed  and  valuable  considera- 
tion, the  lease  was  not  wanting  in  mutuality  merely  because  it  re- 
served to  one  party  an  option  which  it  withheld  from  the  other. 
Brown  v.  Fowler  and  Gas  Co.  v.  Eckert,  supra ;  9  Cyc.  334. 

The  further  position  is  taken  in  the  bill  that  the  lessor  was  entitled 
to  avoid  the  lease,  because  it  covers  three  tracts  separated  by  dis- 
tances of  from  8  to  14  miles,  and  because  no  well  was  drilled  on  two 
of  the  tracts  within  five  years.  That  is  a  matter  in  respect  of  which 
it  was  competent  for  the  parties  to  stipulate,  and  in  respect  of  which 
they  did  stipulate,  as  shown  by  the  following  clauses  of  the  lease : 

"(1)  Second  party  [the  lessee]  agrees  to  drill  a  well  upon  said  premises 
within  two  years  from  this  date,  or  thereafter  pay  to  first  party  [the  lessor] 
seventy-eight  dollars  annually  until  said  well  is  drilled,  or  the  property  hereby 
granted   is   conveyed   to  the   first   party." 

"(9)  If  no  well  shall  be  drilled  upon  said  premises  within  five  years  from 
this  date,  second  party  agrees  to  reconvej^  and  thereupon  this  instrument 
shall  be   null   and  void." 

The  purpose  and  effect  of  these  clauses  was  plainly  (i)  to  give 
the  lessee  two  years  within  which  to  drill  a  well  (not  three  wells, 
but  one)  upon  the  leased  premises — not  each  tract,  but  the  entire 
premises;  (2)  to  enlarge  that  time,  but  not  beyond  five  years,  on 
condition  that  the  lessee  should  pay  an  annual  rental  of  $78  from 
the  expiration  of  the  second  year  until  the  well  should  be  drilled ; 
and  (3)  to  entitle  the  lessor  to  a  reconveyance  of  the  premises  if  no 
well — none  at  all — should  be  drilled  thereon  within  five  years.  Thus 
the  measure  of  diligence  which  the  lessee  was  required  to  exercise 
in  prosecuting  the  work  of  exploration  and  development  during  the 
first  five  years  was  expressly  and  definitely  prescribed,  and  was  not 
left  to  any  implication  which  otherwise  might  arise  from  the  nature 
of  the  lease  or  from  the  other  stipulations  therein.  It  is  appropriate 
to  here  refer  to  what  was  well  said  by  the  Supreme  Court  of  Kansas, 
in  disposing  of  a  somewhat  similar  question,  in  the  case  of  Rose  v. 
Lanyon  Zinc  Co.,  68  Kan.  126,  74  Pac.  625: 

"If  plaintiffs  should  desire  to  contract  for  an  immediate  exploration,  they 
must  have  that  right;  and  if  they  should  desire  to  give  an  oil  or  gas  com- 
pany five  years  in  which  to  sink  a  well,  upon  a  consideration  satisfactory 
to  themselves,  and  as  the  result  of  negotiations   free   from   imposition   and 


COVENANTS    AND    CONDITIONS.  683 

fraud,  they  must  have  that  right.  But,  having  deliberately  made  a  contract 
of  the  latter  description,  they  have  no  right  to  call  upon  a  court  to  declare 
that  it  is  of  the  other  kind,  merely  because  generally  it  might  seem  to  be 
better  for  farmers  not  to  incumber  their  lands  with  mineral  leases,  giving  a 
long  time  for  exploration,  or  because  generally  such  leases  do  contemplate 
that  forfeiture  shall  follow  a  failure  to  explore  at  once." 

As  it  is  admitted  that  a  well  producing  gas  in  paying  quantity 
was  drilled  on  the  leased  premises  during  the  fifth  year  and  that  the 
stipulated  annual  rental  was  paid  from  the  end  of  the  second  year 
until  the  well  was  drilled,  it  follows  that  the  prescribed  measure 
of  diligence  was  exercised,  and  the  lease  was  not  avoidable  because 
other  wells  were  not  drilled  during  the  five-year  period.  Monfort 
V.  Lanyon  Zinc  Co.,  67  Kan.  310,  72  Pac.  784. 

The  complaint  has  proceeded  upon  the  assumption  that  a  failure 
on  the  part  of  the  lessee  to  comply  with  any  condition  of  the  lease 
entitles  her  to  avoid  it  as  to  all  of  the  three  tracts  embraced  therein ; 
but  as  she  is  shown  by  the  bill  to  have  long  since  parted  with  the 
ownership  of  one  of  the  tracts,  and  as  the  present  owner  is  not  a 
party  to  the  bill,  it  is  obvious  that  no  relief  can  be  granted  in  respect 
of  that  tract.  No  reference  is  made  by  learned  counsel  for  the  ap- 
pellee to  the  rule  that,  where  the  reversion  in  part  of  the  demised 
lands  is  assigned,  neither  the  lessor  nor  the  assignee  can  take  ad- 
vantage of  a  condition  broken,  because  the  condition,  being  entire, 
is  not  apportioned  by  the  assignment,  but  destroyed.    Co.  Litt.  215a ; 

1  Taylor's  Landlord  &  Tenant  (8th  Ed.)  §  296;  2  Wood's  Landlord 
&  Tenant    (2d  Ed.)    §   512;  Leake  on  Contracts    (4th  Ed.)    874; 

2  Cruise  on  Real  Property,  tit.  13,  c.  2,  §  58 ;  i  Washburn  on  Real 
Property  (5th  Ed.)  508;  18  Am.  &  Eng.  Enc.  393;  Wright  v. 
Burroughes,  3  C.  B.  685 ;  Twynam  v.  Pickard,  2  B.  &  Aid.  105.  It  is 
therefore  assumed  that  the  rule  is  not  in  force  in  the  state  of  Kansas. 

The  questions  arising  on  this  appeal  to  which  attention  is  chiefly 
given  in  the  briefs  are  these:  (i)  Did  the  lessee  expressly  or  im- 
pliedly covenant  and  agree  to  continue,  with  reasonable  diligence, 
the  work  of  exploration,  development,  and  production  after  the  ex- 
piration of  the  five-year  period,  if  oil  and  gas,  one  or  both,  should 
be  found  in  paying  quantities?  (2)  Was  compliance  with  this  cove- 
nant and  agreement  made  a  condition,  the  breach  of  which  would 
entitle  the  lessor  to  avoid  the  lease?  (3)  Is  such  a  breach  shown  by 
the  bill?     (4)  Is  the  lessor  entitled  to  relief  in  equity? 

It  is  conceded,  as  indeed  it  must  be,  that  the  lease  contains  no 
express  stipulation  as  to  what,  if  anything,  should  be  done  in  the  way 
of  searching  for  and  producing  oil  or  gas  after  the  first  five  years ; 
but  it  does  not  follow  from  this  that  it  is  silent  on  the  subject,  or 
that  the  matter  is  left  absolutely  to  the  will  of  the  lessee.  Whatever 
is  implied  in  a  contract  is  as  efifectual  as  what  is  expressed.  Implica- 
tion is  but  another  name  for  intention,  and  if  it  arises  from  the 
language  of  the  contract  when  considered  in  its  entirety,  and  is  not 


684  OIL,    GAS    AND    OTHER    MINING    LEASES. 

gathered  from  the  mere  expectations  of  one  or  both  of  the  parties, 
it  is  controUing.  Light  will  be  thrown  upon  the  language  used, 
and  the  intention  of  the  parties  will  be  better  reflected,  if  considera- 
tion is  given  to  the  peculiar  and  distinctive  features  of  the  mineral 
deposits  which  are  the  subjects  of  the  lease.  Oil  and  gas  are  usually 
found  in  porous  rock  at  considerable  depth  under  the  surface  of  the 
earth.  Unlike  coal,  iron  and  other  minerals,  they  do  not  have  a 
fixed  situs  under  a  particular  portion  of  the  surface,  but  are  capable 
of  flowing  from  place  to  place  and  of  being  drawn  ofli  by  wells 
penetratin'g  their  natural  reservoir  at  any  point.  They  are  part  of 
the  land,  and  belong  to  the  owner  so  long  as  they  are  in  it,  or  are 
subject  to  his  control;  but  when  they  flow  elsewhere,  or  are  brought 
within  the  control  of  another  by  being  drawn  ofif  through  wells 
drilled  in  other  land,  the  title  of  the  former  owner  is  gone.  So,  also, 
when  one  owner  of  the  surface  overlying  the  common  reservoir  exer- 
cises his  right  to  extract  them,  the  supply  as  to  which  other  owners 
of  the  surface  must  exercise  their  rights,  if  at  all,  is  proportionally 
diminished.  Lanyon  Zinc  Co.  v.  Freeman  (Kan.)  75  Pac.  995; 
Brown  v.  Spilman,  155  U.  S.  665,  669,  15  Sup.  Ct.  245,  39  L.  Ed. 
304;  Ohio  Oil  Co.  V.  Indiana  (No.  i)  177  U.  S.  190,  203-208,  20 
Sup.  Ct.  576,  44  L.  Ed.  729 ;  Acme  Oil  &  Mining  Co.  v.  Williams, 
140  Cal.  681,  684,  74  Pac.  296. 

Looking,  then,  to  the  present  lease,  it  is  seen  that  the  real  subject 
thereof  was  the  oil  and  gas  believed  to  be  in  or  obtainable  through 
the  lessor's  land,  and  the  right  to  search  for  them  and  to  reduce  them 
to  possession.  The  terms  of  the  lease,  material  to  the  present 
inquiry,  were  in  effect  as  follows :  The  consideration  was  primarily 
$1  paid  at  the  time,  but  secondarily  the  covenants  and  agreements 
of  the  lessee.  The  grant  was  of  "all  the  oil  and  gas''  under  the 
premises  described,  together  with  the  right  to  enter  "at  all  times" 
for  the  purpose  of  "drilling  and  operating,"  to  erect  and  maintain 
structures,  pipe  lines,  and  machinery  necessary  for  the  "production 
and  transportation"  of  oil  and  gas,  and  to  use  sufficient  water,  oil, 
and  gas  to  run  the  necessary  engines  for  the  "prosecution  of  said 
business."  The  grant  was  stated  to  be  "on  the  following  terms," 
and  then  followed  several  stipulations,  among  which  were  these 
express  covenants  and  agreements  on  the  part  of  the  lessee  :  ( i )  To 
drill  a  well  within  two  years,  with  a  right  to  enlarge  the  time  to  five 
years  by  the  payment  of  an  annual  rental  of  $78  from  the  end  of 
the  second  year  until  a  well  should  be  drilled.  (2)  To  drill  no  well 
nearer  than  300  feet  to  any  building  on  the  premises,  and  to  occupy 
not  exceeding  one  acre  of  the  surface  in  connection  with  any  well. 
(3)  "Should  oil  be  found  in  paying  quantities,"  to  deliver  to  the 
lessor  one-tenth  of  all  the  oil  "produced  and  saved."  (4)  "Should 
gas  be  found,"  to  pay  to  the  lessor  $50  annually  for  "every  well" 
from  which  gas  should  be  used  ofif  the  premises.  The  concluding 
stipulation  was  that  a  failure  on  the  part  of  the  lessee  to  comply 


COVENANTS    AND    CONDITIONS.  685 

with  "any  oi  the  above  conditions"  should  render  the  lease  null  and 
void.  The  implication  necessarily  arising  from  these  provisions— 
the  intention  which  they  obviously  reflect — is  that  if,  at  the  end  of 
the  five-year  period  prescribed  for  original  exploration. and  develop- 
ment, oil  and  gas,  one  or  both,  had  been  found  to  exist  in  the  demised 
premises  in  paying  quantities,  the  work  of  exploration,  development, 
and  production  should  proceed  with  reasonable  diligence  for  the 
common  benefit  of  the  parties,  or  the  premises  be  surrendered  to  the 
lessor.  That  this  was  of  the  very  essence  of  the  contract  is  shown 
by  the  extensive  character  of  the  grant,  which  was  without  limit  as 
to  time  and  included  all  the  oil  and  gas  in  or  obtainable  through  the 
demised  premises;  by  the  provisions  for  the  payment  of  substantial 
royalties  in  kind  and  in  money  on  the  oil  produced  and  saved  and 
the  gas  used  off  the  premises,  which,  as  contrasted  with  the  consid- 
eration paid  when  the  lease  was  executed,  shows  that  the  promise  of 
these  royalties  was  the  controlling  inducement  to  the  grant ;  and  by 
the  provisions  contemplating  the  drilling  and  operation  of  wells,  the 
production  and  transportation  of  oil  and  gas,  and  the  prosecution  of 
that  business  subject  to  the  restrictions  prescribed. 

Considering  the  migratory  nature  of  oil  and  gas,  and  the  danger 
of  their  being  drawn  off  through  wells  on  other  lands  if  the  field 
should  become  fully  developed,  all  of  which  must  have  been  in  the 
minds  of  the  parties,  it  is  manifest  that  the  terms  of  the  lease  con- 
templated action  and  diligence  on  the  part  of  the  lessee.  There 
could  not  well  have  been  an  express  stipulation  as  to  the  number  of 
wells  to  be  drilled,  as  to  when  the  wells,  other  than  the  first,  should 
be  drilled,  or  as  to  the  rate  at  which  the  production  therefrom  should 
proceed,  because  these  matters  would  depend  in  large  measure  upon 
future  conditions,  which  could  not  be  anticipated  with  certainty, 
such  as  the  extent  to  which  oil  and  gas,  one  or  both,  could  be  pro- 
duced from  the  premises,  as  indicated  by  the  first  well  and  any  others 
in  the  vicinity,  the  existence  of  a  local  market  or  demand  therefor 
or  the  means  of  transporting  them  to  a  market,  and  the  presence  of 
wells  on  adjacent  lands  capable  of  diminishing  or  exhausting  the 
supply  in  the  natural  reservoir.  The  subject  was,  therefore,  ration- 
ally left  to  the  implication,  necessarily  arising  in  the  absence  of  ex- 
press stipulation,  that  the  further  prosecution  of  the  work  should 
be  along  such  lines  as  would  be  reasonably  calculated  to  effectuate 
the  controlling  intention  of  the  parties  as  manifested  in  the  lease, 
which  was  to  make  the  extraction  of  oil  and  gas  from  the  premises 
of  mutual  advantage  and  profit.  Even  in  respect  of  the  first  well, 
if  oil  or  gas  was  found  in  paying  quantity,  there  was  no  express 
engagement  to  operate  it;  but  that  it  was  intended  to  be  operated 
was  plainly  implied  in  the  engagement  to  pay  royalties  to  be  gauged 
according  to  the  production  of  oil  and  the  use  of  gas.  Whatever 
is  necessary  to  the  accomplishment  of  that  which  is  expressly  con- 
tracted to  be  done  is  part  and  parcel  of  the  contract,  though  not 


686  OIL,    GAS    AXD   OTHER    MIXING    LEASES. 

specified.  Godkin  v.  Monahan,  27  C.  C.  A.  410,  415,  83  Fed.  116; 
Lawler  v.  Murphy,  58  Conn.  309,  20  Atl.  457,  8  L.  R.  A.  113;  Sav- 
age V.  Whitaker,  15  Me.  24;  Currier  v.  Boston  &  Maine  R.  R.,  34  N. 
H.  498,  510. 

In  Harris  v.  Ohio  Oil  Co.,  57  Ohio  St.  118,  127,  48  N.  E. 
502,  505,  it  was  said  by  the  Supreme  Court  of  Ohio,  in  considering 
whether  a  similar  lease  contained  an  implied  covenant  for  the  drill- 
ing of  a  reasonable  number  of  wells : 

"On  principle,  it  would  seem  that  there  is  such  implied  covenant  in  the 
written  instrument.  When  no  time  is  fixed  for  the  performance  of  a  con- 
tract, a  reasonable  time  is  implied.  When  a  contract  for  the  erection  of  a 
house  or  other  structure  is  silent  as  to  the  quality  or  the  materials  or  work- 
manship, it  is  implied  that  the  same  should  be  of  reasonable  quality.  In  a 
lease  of  a  farm  for  tillage  on  the  shares,  it  is  implied  that  the  tenant  shall 
cultivate  the  farm  in  the  manner  usually  done  by  reasonably  good  farmers. 
So,  under  an  oil  lease  which  is  silent  as  to  the  number  of  wells  to  be  drilled, 
there  is  an  implied  covenant  that  the  lessee  shall  reasonably  develop  the 
lands  and  reasonably  protect  the   lines." 

And  the  decisions  in  other  states  in  which  the  question  has  arisen 
have  been  uniformly  to  the  same  effect.  Allegheny  Oil  Co.  v.  Sny- 
der, 45  C.  C.  A.  604,  106  Fed.  764;  McKnight  v.  Manufacturers' 
Natural  Gas  Co.,  146  Pa.  185,  199,  23  Atl.  164,  28  Am.  St.  Rep.  790; 
Kleppner  v.  Lemon,  176  Pa.  502,  35  Atl.  109;  Koch's  and  Balliett's 
Appeal,  93  Pa.  434,  441  ;  Aye  v.  Philadelphia  Co.,  193  Pa.  451-44 
Atl.  555;  Acme  Oil  &  Mining  Co.  v.  Williams,  140  Cal.  681,  684, 
74  Pac.  296;  Gadbury  v.  Ohio  &  Indiana  Consolidated  Natural  & 
Illurninating  Gas  Co.  (Ind.)  ^-j  N.  E.  259,  62  L.  R.  A.  895  ;  Consum- 
ers' Gas  Trust  Co.  v.  Littler  (Ind.)  70  N.  E.  363;  Island  Coal  Co.  v. 
Combs  (Ind.)  53  N.  E.  452,  455;  Parish  Fork  Oil  Co.  v.  Bridge- 
water  Gas  Co.  (W.  Va.)  42  S.  E.  655,  59  L.  R.  A.  566;  J.  M. 
GufTey  Petroleum  Co.  v.  Oliver  (Tex.  Civ.  App.)  79  S.  W.  884; 
Conrad  v.  Morehead,  89  N.  C.  31  ;  Logan  Natural  Gas  &  Fuel  Co. 
v.  Great  Southern  Gas  &  Oil  Co.,  61  C.  C.  A.  359,  361,  126  Fed. 
623 ;  Kellar  v.  Craig,  61  C.  C.  A.  366,  369,  126  Fed.  630.  See,  also. 
United  States  v.  Bostwick,  94  U.  S.  53,  65,  24  L.  Ed.  65 ;  2  Wash- 
burn on  Real  Property  (5th  Ed.)  12. 

Upon  both  principle  and  authority  it  must  be  held  that  the  present 
lease  contains  a  covenant  by  the  lessee  to  continue,  with  reasonable 
diligence,  the  work  of  exploration,  development,  and  production  at 
the  end  of  the  five  years,  if  during  that  time  oil  and  gas,  one  or  both, 
are  found  in  paying  quantities.  It  does  not  militate  against  this 
conclusion  that  the  lessee  can  at  its  option  surrender  the  lease  at  any 
time,  because  until  that  is  done  the  lessee  is  equally  bound  by  all 
of  its  covenants,  whether  express  or  implied.  The  option  does  not 
entitle  it  to  do  less  than  to  entirely  surrender  the  lease  and  to  thereby 
enable  the  lessor  to  herself  exercise  the  right  to  extract  the  oil  and 
gas  from  her  lands  or  to  negotiate  a  new  lease  to  that  end. 


COVENANTS    AND    CONDITIONS.  687 

The  covenants  of  the  lessee  are  introduced  into  the  lease  by  the 
statement  that  the  grant  is  made  "on  the  following  terms,"  and 
are  followed  by  a  stipulation  that  the  lessee's  failure  to  comply  with 
"any  of  the  above  conditions"  shall  render  the  lease  null  and  void. 
These  provisions  make  it  plain  that  it  was  the  intention  of  the  parties 
to  make  the  covenants  of  the  lessee  conditions  as  well  as  covenants, 
and  to  reserve  to  the  lessor  the  right  to  avoid  the  lease  for  the 
breach  of  any  of  them.  But  it  is  insisted  that  the  words  "any  of 
the  above  conditions"  refer  to  what  is  expressed,  and  not  to  what  is 
implied,  or,  to  state  it  differently,  that  they  refer  to  the  mere  letter 
of  the  preceding  stipulations  and  not  to  their  spirit  or  legal  effect. 
To  so  hold  would  be  to  declare  the  lease  avoidable  if  the  lessee  fails 
to  deliver  one-tenth  of  all  the  oil  produced  and  saved,  or  to  pay  the 
annual  rental  for  gas  used  off  the  premises,  but  not  avoidable  if  the 
lessee,  having  found  oil  and  gas  in  paying  quantities,  ceases  develop- 
ment and  production,  at  a  time  when  these  fluids  are  being  drawn 
ofif  through  wells  on  adjacent  lands,  and  thereby  jeopardizes  the 
controlling  object  of  the  lease.  And  it  would  seem  that  to  so  hold 
might  result  in  the  lessor  being  practically  without  any  remedy  for 
the  breach  of  the  covenant  for  further  development  and  production, 
inasmuch  as  specific  performance  cannot  be  had  against  one  having 
an  option  to  terminate  the  contract  at  any  time  (Marble  Co.  v. 
Ripley,  lo  Wall.  339,  359,  19  L.  Ed.  955 ;  Express  Co.  v.  Railroad 
Co.,  99  U.  S.  191,  200,  25  L.  Ed.  319;  Federal  Oil  Co.  v.  Western 
Oil  Co.,  57  C.  C.  A.  428,  121  Fed.  674;  Rust  v.  Conrad  [Mich.] 
II  N._  W.  265,  41  Am.  Rep.  720),  and  as  the  obvious  difficulty  in 
establishing  the  amount  of  oil  and  gas  in  the  demised  premises,  or 
the  amount  diverted  therefrom  by  the  wells  on  adjoining  lands, 
would  be  a  serious  obstacle  to  the  recovery  of  adequate  damages  at 
law.  But,  however  this  may  be,  the  present  insistence  is  not  well 
grounded.  The  question  is  essentially  one  of  intention  (4  Kent's 
Com.  ^132 ;  Doe  v.  Elsam,  M.  &  M.  189;  Faylor  v.  Brice,  7  Ind.  App. 
551,  34  N.  E.  833),  and  the  words  "any  of  the  above  conditions" 
must  be  given  effect  in  the  sense  in  which  they  were  used  by  the 
parties.  They  are  very  comprehensive,  and  were  evidently  designed 
to  refer,  not  merely  to  the  letter,  but  to  the  spirit  and  legal  effect  of 
the  preceding  stipulations,  and  therefore  to  every  covenant  of  the 
lessee  which  is  part  of  them.  The  error  in  the  insistence  to  the  con- 
trary is  that  it  fails  to  give  effect  to  the  well-established  rule  that  a 
covenant  arising  by  necessary  implication  is  as  much  a  part  of  the 
contract — is  as  effectually  one  of  its  terms — as  if  had  been  plainly 
expressed.  United  States  v.  Bostwick,  94  U.  S.  53,  66,  24  L.  Ed. 
65  ;  United  States  v.  Babbitt,  i  Black,  55,  61,  17  L.  Ed.  94;  Bulkley 
v.  United  States,  19  Wall.  37,  40,  22  L.  Ed.  62 ;  Cornett  v.  Williams, 
20  Wall.  226,  250,  22  L.  Ed.  254;  Hearne  v.  Marine  Ins.  Co.,  20 
Wall.  488,  493,  22  L.  Ed.  395 ;  Supervisors  v.  Lackawanna  Iron,  etc.. 


688  OIL,    GAS    AND   OTHER    MINING    LEASES. 

Co.,  93  U.  S.  619,  624,  23  L.  Ed.  989 ;  Godkin  v.  Monahan,  27  C.  C. 
A.  410,  415,  83  Fed.  116. 

The  conclusion  is  that  compHance  with  the  covenant  to  continue 
with  reasonable  diligence  the  work  of  exploration,  development,  and 
production  after  the  expiration  of  the  five-year  period,  if  during  that 
time  oil  and  gas,  one  or  both,  be  found  in  paying  quantities,  is  by 
the  terms  employed  made  a  condition  the  breach  of  which  entitles 
the  lessor  to  avoid  the  lease.  In  this  view  it  becomes  unnecessary 
to  consider  whether,  if  the  covenant  were  not  made  a  condition,  its 
breach  would  constitute  a  ground  for  complete  or  partial  forfeiture 
in  equity — a  matter  in  respect  of  which  the  courts  have  divided  in 
opinion.  What  constitutes  a  breach  of  such  a  covenant  has  been  the 
subject  of  consideration  in  several  cases.  McKnight  v.  Manufac- 
turers' Natural  Gas  Co.,  146  Pa.  185,  200-203,  23  Atl.  164,  28  Am. 
St.  Rep.  790;  Kleppner  v.  Lemon,  176  Pa.  502,  35  Atl.  109;  Id. 
198  Pa.  581,  48  Atl.  483;  Colgan  v.  Forest  Oil  Co.,  194  Pa.  234, 
45  Atl.  119,  75  Am.  St.  Rep.  695;  Koch's  &  Balliett's  Appeal,  93 
Pa.  434,  442;  Harris  v.  Ohio  Oil  Co.,  57  Ohio  St.  118,  127,  48  N.  E. 
502;  Coffinberry  v.  Sun  Oil  Co.  (Ohio)  67  N.  E.  1069;  Gadbury  v. 
Ohio  &  Indiana  Consolidated  Natural  &  Illuminating  Gas  Co.  (Ind.) 
67  N.  E.  259,  62  L.  R.  A.  895;  Kellar  v.  Craig,  61  C.  C.  A.  366, 
369,  126  Fed.  630.  The  decisions  have  not  been  entirely  harmoni- 
ous, and  well  illustrate  the  difficulty  of  laying  down  any  compre- 
hensive rule  in  respect  of  a  question  which  is  so  largely  one  of  fact 
that  it  must  be  resolved  in  each  case  according  to  its  particular  cir- 
cumstances. In  some  of  the  cases,  notably  Kellar  v.  Craig  and 
Colgan  V.  Forest  Oil  Co.,  supra,  it  seems  to  be  held  that  the  ques- 
tion of  what  is  reasonable  in  the  way  of  continued  exploration  and 
development,  where  there  is  no  specific  stipulation  on  the  subject, 
is  committed  to  the  judgment  of  the  lessee,  whose  determination,  if 
made  honestly  and  in  good  faith,  is  conclusive,  much  as  is  the  de- 
cision of  an  engineer  under  a  construction  contract  which  expressly 
makes  him  the  final  arbiter  of  all  questions  relating  to  the  amount 
and  character  of  the  work  done,  its  conformity  to  the  contract,  and 
the  price  to  be  paid.  Guild  v.  Andrews  (C.  C.  A.)  137  Fed.  369; 
Chocktaw  &  Memphis  R.  R.  Co.  v.  Newton  (C.  C.  A.)  140  Fed.  225. 

Thus  it  is  said  in  Kellar  v.  Craig : 

"In  all  leases  for  oil  and  gas  purposes,  a  covenant  to  'protect  the  lines'  of 
and  'well  develop'  the  land  leased  is  implied  by  law,  and  so  it  follows  that 
the  general  words  relating  to  those  matters,  inserted  in  the  lease  under  con- 
sideration, really  add  nothing  to  the  obligations  assumed  by  the  lessee  con- 
cerning such  work.  In  such  leases,  where  general  covenants  of  that  charac- 
ter are  found  or  are  implied,  the  lessee  or  his  assigns  are  permitted  to  de- 
termine the  character  of  the  work  to  be  done,  and  such  ascertainment  by 
him  or  them,  in  the  absence  of  fraud,  disposes  of  the  question." 


COVENANTS    AND    CONDITIONS.  689 

And  in  Colgan  v.  Forest  Oil  Co.  it  is  said : 

"So  long  as  the  lessee  is  acting  in  good  faith  on  business  judgment,  he  is 
not  bound  to  take  any  other  party's,  but  may  stand  on  his  own.  Every  man 
who  invests  his  money  and  labor  in  a  business  does  it  on  the  confidence  he 
has  in  being  able  to  conduct  it  in  his  own  way.  No  court  has  any  power  to 
impose  a  different  judgment  on  him,  however  erroneous  it  may  deem  his 
to  be.  Its  right  to  interfere  does  not  arise  until  it  has  been  shown  clearly 
that  he  is  not  acting  in  good  faith,  on  his  business  judgment,  but  fraudulently, 
with  intent  to  obtain  a  dishonest  advantage  over  the  other  party  to  the  con- 
tract." 

With  great  deference  to  tlie  able  courts  which  have  adopted  this 
view,  we  think  it  is  not  sound.  In  the  absence  of  some  stipulation 
to  that  effect,  we  think  an  oil  and  gas  lease  cannot  be  said  to  make 
the  lessee  the  arbiter  of  the  extent  to  which,  or  the  diligence  with 
which,  the  exploration  and  development  shall  proceed.  The  opera- 
tions contemplated,  in  the  event  oil  and  gas  are  found  in  paying 
quantities,  are  not  to  be  likened  unto  a  business  into  which  one  puts 
property,  money,  and  labor  exclusively  his  own,  the  profits  and 
losses  in  which  are  of  concern  only  to  him,  and  the  conduct  of  which 
may  be  according  to  his  own  judgment,  however  erroneous  it  may 
be.  By  reason  of  the  conditions  on  which  the  lease  is  granted  the 
lessor  retains  at  least  a  contingent  interest  in  the  oil  and  gas,  to  the 
profitable  extraction  of  which  the  operations  are  directed.  This  in- 
terest in  the  subject  of  the  lease,  and  the  fact  that  the  substantial 
consideration  for  the  grant  lies  in  the  provisions  for  the  payment  of 
royalties  in  kind  and  in  money  on  the  oil  and  gas  extracted,  make  the 
extent  to  which  and  the  diligence  with  which  the  operations  are 
prosecuted  of  immediate  concern  to  the  lessor.  If  they  do  not 
proceed  with  reasonable  diligence,  and  by  reason  thereof  the  oil 
and  gas  are  diminished  or  exhausted  through  the  operation  of  wells 
on  adjoining  lands,  the  lessor  loses,  not  only  royalties  to  which  he 
would  otherwise  be  entitled,  but  also  his  contingent  interest  in  the 
oil  and  gas  which  thus  passes  into  the  control  of  others.  The  object 
of  the  operations  being  to  obtain  a  benefit  or  profit  for  both  lessor 
and  lessee,  it  seems  obvious,  in  the  absence  of  some  stipulation  to 
that  effect,  that  neither  is  made  the  arbiter  of  the  extent  to  w^iich  or 
the  diligence  with  which  the  operations  shall  proceed,  and  that  both 
are  bound  by  the  standard  of  what  is  reasonable.  This  is  the  rule  in 
respect  of  all  other  contracts  where  the  time,  mode,  or  quality  of 
performance  is  not  specified,  and  no  reason  is  perceived  why  it 
should  not  be  equally  applicable  to  oil  and  gas  leases.  There  can, 
therefore,  be  a  breach  of  the  covenant  for  the  exercise  of  reasonable 
diligence,  though  the  lessee  be  not  guilty  of  fraud  or  bad  faith. 

But.  while  this  is  so,  no  breach  can  occur  save  where  the  absence 
of  such  diligence  is  both  certain  and  substantial  in  view  of  the 
actual  circumstances  at  the  time,  as  distinguished  from  mere  ex- 
pectations on  the  part  of  the  lessor  and  conjecture  on  the  part  of 

4-1 — Mixing  Law 


690  OIL,    GAS    AND   OTHER    MINING    LEASES. 

mining  enthusiasts.  The  large  expense  incident  to  the  work  of 
exploration  and  development,  and  the  fact  that  the  lessee  must  bear 
the  loss  if  the  operations  are  not  successful,  require  that  he  proceed 
with  due  regard  to  his  own  interests,  as  well  as  those  of  the  lessor. 
No  obligation  rests  on  him  to  carry  the  operations  beyond  the  point 
where  they  will  be  profitable  to  him,  even  if  some  benefit  to  the  lessor 
will  result  from  them.  It  is  only  to  the  end  that  the  oil  and  gas  shall 
be  extracted  with  benefit  or  profit  to  both  that  reasonable  diligence 
is  required.  Whether  or  not  in  any  particular  instance  such  dili- 
gence is  exercised  depends  upon  a  variety  of  circumstances,  such  as 
the  quantity  of  oil  and  gas  capable  of  being  produced  from  the  prem- 
ises, as  indicated  by  prior  exploration  and  development,  the  local 
market  or  demand  therefor  or  the  means  of  transportng  them  to 
market,  the  extent  and  results  of  the  operations,  if  any,  on  adjacent 
lands,  the  character  of  the  natural  reservoir — whether  such  as  to 
permit  the  drainage  of  a  large  area  by  each  well — and  the  usages  of 
the  business.  Whatever,  in  the  circumstances,  would  be  reasonably 
expected  of  operators  of  ordinary  prudence,  having  regard  to  the 
interests  of  both  lessor  and  lessee,  is  what  is  required.  A  plain  and 
substantial  disregard  of  this  requirement  constitutes  a  breach  of  the 
covenant  for  the  exercise  of  reasonable  diligence,  which,  as  before 
shown,  is  also  made  a  condition  of  the  lease  under  consideration. 

As  the  amended  bill  discloses  that  there  w'as  no  breach  of  any  con- 
dition during  the  5-year  period,  and  as  the  lessor  will  not  be  per- 
mitted to  complain  that  the  work  of  exploration  and  development  is 
not  proceeded  with  during  the  pendency  of  a  suit  in  which  she  is 
seeking  to  have  it  adjudged  that  the  right  to  proceed  therewith  was 
terminated  before  the  suit  was  begun,  the  question  of  the  lessee's 
diligence  has  reference  only  to  the  14  months  intervening  between 
the  expiration  of  the  5-year  period  and  the  declaration  of  forfeiture 
made  by  the  lessor  a  few  days  prior  to  the  beginning  of  the  suit. 
The  circumstances  out  of  which  the  right  to  avoid  the  lease  are 
alleged  to  have  arisen  are  these :  The  land  covered  by  the  lease  and 
owned  by  the  lessor,  omitting  the  tract  sold,  consisted  of  two  tracts, 
separated  by  a  distance  of  8  miles  and  embracing  232.50  acres.  Both 
tracts  were  within  a  recognized  oil  and  gas  field.  The  lessee  had 
drilled  one  well  on  one  of  the  tracts  in  which  gas  was  found  in  pay- 
ing quantity.  No  additional  wells  were  drilled  or  attempted  to  be 
drilled  during  the  14  months.  Many  wells  had  been  drilled  in  the 
territory  adjacent  to  and  surrounding  these  tracts  which  produced 
oil  and  gas  in  paying  quantities,  and  new  wells  were  being  drilled 
and  operated  in  that  territory.  The  wells  on  adjacent  lands  were  so 
near  to  these  tracts  that  they  drained  the  same  of  a  good  portion 
of  the  oil  and  gas  therein  and  rendered  the  lease  of  much  less  value 
to  the  lessor  than  it  would  have  been  had  the  lessee  proceeded  with 
reasonable  diligence  to  drill  other  wells  on  the  two  tracts  and  to 
operate  them  for  the  mutual  benefit  of  the  parties.    The  lessee  took 


COVENANTS    AND    CONDITIONS.  69I 

and  maintained  the  position  that,  by  drilHng  the  single  well,  it  ac- 
quired the  right  to  hold  the  lease  indefinitely,  without  further  devel- 
opment or  doing  more  than  paying  annually  the  stipulated  $50  for 
the  gas  from  that  well  used  off  the  premises.  The  extent  of  the 
drainage  through  wells  on  adjacent  lands  was  not  susceptible  of 
definite  ascertainment,  and  therefore  the  injury  to  the  lessor  from 
the  lessee's  failure  to  proceed  with  reasonable  diligence  could  not 
be  adequately  compensated  in  damages.  We  think  there  can  be  no 
difference  of  opinion  as  to  the  effect  of  these  allegations,  all  of  which 
stand  admitted  by  the  demurrer.  They  show,  not  only  an  absence 
of  reasonable  diligence  on  the  part  of  the  lessee,  but  a  practical 
repudiation  of  the  controlling  purpose  of  the  lease  and  a  persistent 
disregard  of  the  rights  of  the  lessor.  The  existence  of  gas  in  pay- 
ing quantity  in  one  of  the  tracts  was  an  ascertained  fact.  Both  oil 
and  gas  were  being  produced  in  paying  quantities  from  the  lands 
surrounding  that  tract  and  also  from  those  surrounding  the  other. 
The  consequent  reduction  of  the  underlying  supply  of  these  migra- 
tory minerals  was  operating  to  the  serious  disadvantage  of  the 
lessor.  The  necessary  inference  from  what  is  stated  is  that  further 
exploration  and  development  would  have  been  profitable  to  the  lessee 
as  well  as  beneficial  to  the  lessor.  In  these  circumstances  the  pro- 
longed failure  of  the  lessee  to  proceed  with  the  contemplated  opera- 
tions, though  due  to  a  mistaken  view  of  the  obligations  imposed  by 
the  lease,  was  a  plain  and  substantial  breach  of  the  covenant  and  con- 
dition in  respect  of  the  exercise  of  reasonable  diligence,  and  entitled 
the  lessor  to  terminate  the  lease. 

It  is  said  the  remedy  of  the  lessor  was  not  forfeiture,  because  the 
breach  was  compensable  in  damages.  The  claim  is  too  broad. 
There  is  no  general  rule  of  law  to  that  effect.  Story's  Equity  Juris- 
prudence, §§  1302,  1 311.  Relief  against  forfeitures  is  a  distinctive 
doctrine  of  equity,  and,  save  in  special  circumstances  not  shown  to 
exist  in  this  case,  is  never  granted  where  the  damages  occasioned 
by  the  breach  because  of  which  the  forfeiture  is  incurred  cannot  be 
ascertained  with  reasonable  precision.  Story's  Equity  Jurisprudence, 
§§  450-454.  Thus,  in  Sheets  v.  Selden,  7  Wall.  416,  421,  19  L.  Ed. 
166,  where  the  forfeiture  of  a  lease  was  under  consideration,  it  was 
said: 

"The  grounds  upon  which  a  court  of  equity  proceeds  are  that  the  rent  is 
the  object  of  the  parties,  and  the  forfeiture  only  an  incident  intended  to 
secure  its  payment;  that  the  measure  of  damages  is  fixed  and  certain;  and 
that  when  the  principal  and  interest  are  paid  the  compensation  is  complete. 
In  respect  to  other  covenants  pertaining  to  leasehold  estates,  where  the  ele- 
ments of  fraud,  accident,  and  mistake  are  wanting,  and  the  measure  of  com- 
pensation is  uncertain,  equity  will  not  interfere.  It  allows  the  forfeiture  to 
be  enforced,  if  such  is  the  remedy  provided  by  the  contract.  This  rule  is  ap- 
plied to  the  covenant  to  repair,  to  insure,  and  not  to  assign." 

The  covenant  here  broken  was  not  in  the  nature  of  a  pecuniary 


692  OIL,    GAS    AND   OTHER    MINING    LEASES. 

obligation,  such  as  a  covenant  to  pay  rent,  nor  was  its  breach  rea- 
sonably compensable  in  damages.  The  amount  of  oil  and  gas  which 
would  have  been  produced  from  the  lessor's  land  by  the  exercise  of 
due  diligence  on  the  part  of  the  lessee,  as  also  the  amount  diverted 
therefrom  by  wells  on  surrounding  lands,  was  not  susceptible  of 
anything  like  certain  ascertainment.  More  than  this,  the  attitude  of 
the  lessee  was  such  that  the  breach  promised  to  be  a  continuing  one, 
and,  by  reason  of  the  migratory  character  of  oil  and  gas,  to  be  as 
injurious  to  and  as  destructive  of  the  lessor's  rights  as  would  be  con- 
tinuing trespass  or  waste.  The  forfeiture  was,  therefore,  not  one 
which  equity  would  have  relieved. 

The  forfeiture  having  been  rightfully  asserted  under  circum- 
stances where  the  lessee  was  not  entitled  to  relief  in  equity,  the  re- 
maining question  is :  Can  the  lessor  maintain  a  bill  to  establish  the 
forfeiture  as  matter  of  record,  and  to  cancel  the  lease  as  a  cloud  upon 
her  title?  It  will  be  answered  by  considering  whether  "a  plain, 
adequate,  and  complete  remedy  may  be  had  at  law."  (Rev.  St.  §  723 
[U.  S.  Comp.  St.  1901,  p.  583]),  and  also  whether  there  is  any  in- 
superable objection  in  equity  to  granting  relief  which  involves  giving 
effect  to  a  completed  forfeiture.    *    *    * 

It  follows  from  what  has  been  said  that,  if  the  present  case  be 
regarded  as  in  effect  one  to  enforce  a  forfeiture,  it  is  yet  one  the 
circumstances  and  exigency  of  which,  as  stated  in  the  amended 
bill,  entitle  the  lessor  to  relief  in  equity. 

It  has  been  said  of  a  suit  like  this  that  it  is  not  one  to  aid  in  the 
enforcement  of  a  forfeiture.  Harper  v.  Tidholm  (111.)  40  N.  E. 
575;  Mott  v.  Danville  Seminary  (111.)  21  N.  E.  927;  Pendill  v. 
Union  Mining  Co.  (Mich.)  31  N.  W.  100.  But  we  think  it  is  es- 
sentially of  that  character.  Its  primary  and  only  purpose  is  to  estab- 
lish a  forfeiture  as  matter  of  record  and  to  obtain  the  cancellation  of 
the  thing  forfeited.  This  constitutes  enforcement  in  the  only  sense 
in  which  that  term  is  applicable  to  a  forfeiture,  which  is  that  of  giv- 
ing effect  to  it  after  its  incurrence,  just  as  a  statute  is  enforced  after 
its  enactment.  The  case  of  Big  Six  Development  Co.  v.  Mitchell 
(C.  C.  A.)  138  Fed.  279,  which  seems  to  adopt  the  other  view, 
differs  from  this  in  that  there  the  primary  purpose  was  to  enjoin 
continuing  trespass  or  waste.  It  follows  that,  under  the  rule  before 
stated,  the  lessor  will  be  entitled  to  relief  only  in  the  event  that  the 
case  made  upon  the  hearing  shall  be,  as  is  that  made  by  the  amended 
bill,  one  the  equity  of  which  is  strong  enough  to  overcome  the 
general  indisposition  of  courts  of  chancery  towards  aiding  in  the 
enforcement  of  forfeitures. 

The  decree  is  reversed,  with  instructions  to  overrule  the  demurrer 
to  the  amended  bill  and  to  take  such  further  proceedings  as  may  not 
be  inconsistent  with  the  views  expressed  in  tliis  opinion. 


'  COVENANTS   AND    CONDITIONS.  693 

PYLE  ET  AL.  V.  HENDERSON  et  al. 

1909.     Supreme  Court  of  Appeals  of  West  Virginia. 
65  W.  Va.  39,  63  S.  E.  762. 

Bill  by  C.  E.  Pyle  and  others  against  one  Henderson  and  others. 
Decree  for  defendants,  and  complainants  appeal.     Affirmed. 

Brannon^  J.** — Thomas  Bunfill,  February  3.  1897,  made  an  oil 
lease  of  60  acres  of  land  to  A.  B.  Campbell  and  J.  W.  Swan.  The 
lessees  paid  Bunfill  a  cash  bonus  or  consideration  for  the  lease  of 
$55.  The  lease  is  for  a  term  of  five  years,  and  so  long  thereafter 
as  oil  and  gas  shall  be  found  in  paying  quantities  or  rental  paid 
thereon.  The  lease  contained  a  clause  on  which  this  litigation  turns : 
"Provided,  however,  that  this  lease  shall  become  null  and  void  and 
all  rights  hereunder  shall  cease  and  determine  unless  a  well  shall  be 
completed  on  said  premises  within  three  months  from  the  date 
hereof,  or  in  lieu  thereof  thereafter  the  parties  of  the  second  part 
shall  pay  to  the  parties  of  the  first  part  fifteen  dollars  for  each  three 
months'  delay,  payable  in  advance,  until  such  well  is  completed."  No 
well  was  put  down  under  this  lease,  nor  was  the  $15  commutation 
money  paid.  On  May  5,  1897,  Bunfill  made  an  oil  and  gas  lease  of 
the  same  tract  to  C.  E.  Pyle.  The  contest  is  between  those  claiming 
under  these  conflicting  leases.  When  the  first  lease  was  made, 
Bunfill  owned  only  seven  undivided  ninths  of  the  tract.  His  brother 
John  owned  one  ninth,  and  the  Sindledecker  heirs  the  other  ninth. 
Thomas  Bunfill  secured  a  conveyance  from  John  Bunfill  of  his  ninth, 
March  15,  1897,  before  the  three  months'  limit  in  the  clause 
quoted  above  had  expired.  He  never  did  get  in  the  ninth  interest 
of  the  Sindledeckers.  Some  of  them  were  infants,  and  under  a 
judicial  proceeding  Miller,  trustee,  acquired  that  share  of  the  oil  and 
gas.  Pyle,  the  second  lessee,  assigned  an  interest  in  his  lease  to 
Hardman,  and  Pyle  and  Hardman  assigned  the  second  lease  to 
Miller,  trustee,  and  thus  Miller  obtained  the  whole,  except  reserved 
royalties  to  Pyle  and  Hardman.  The  first  lease  came  to  be  owned 
by  Campbell,  Swan,  Stealy,  and  Henderson.  No  possession  was 
taken  under  the  first  lease,  but  under  the  second  wells  were  drilled 
and  oil  produced.  Pyle,  Hardman,  and  Miller,  trustee,  claiming 
under  the  second  lease,  brought  a  chancery  suit  against  Henderson 
and  others,  claiming,  in  their  original  and  amended  bills,  under  the 
second  lease  as  superior  to  the  right  of  those  claiming  under  the 
first  lease;  claiming  that  all  right  under  it  had  ceased  before  the 
second  lease  was  made,  because  of  failure  to  drill  a  well  or  pay  the 
$15  commutation  money,  as  demanded  by  the  clause  of  the  first  lease 
quoted  above ;  alleging  that  they  were  in  possession,  operating  for  oil 
under  the  second  lease  ;  and  seeking  to  enjoin  the  claimants  under  the 

"  Part  of  the  opinion  is  omitted. 


694  OIL,    GAS    AND    OTHER    MINING    LEASES. 

first  lease  from  entering  and  boring  for  oil,  and  to  cancel  said  first 
lease  as  a  cloud  upon  their  title.  The  defendants  filed  a  cross-bill 
answer  setting  up  their  title  under  the  first  lease,  and  praying  that 
the  second  lease  be  canceled.  A  decree  was  entered  holding  the  sec- 
ond lease  void  and  canceling  it,  and  declaring  the  first  lease  good 
and  valid,  and  dissolving  an  injunction  which  had  been  awarded 
against  the  claimants  under  the  first  lease  entering  or  operating.  The 
decree  conceded  to  Miller  his  right  to  the  Sindlcdecker  share.  From 
this  decree  Pyle  and  others  appeal. 

One  argument  made  for  the  second  lease  is  that  the  first  has  no 
covenants  binding  the  lessees  to  do  anything,  unless  they  wished ; 
that  it  binds  the  lessees  for  nothing  until  they  should  get  oil  either 
to  drill  a  well  or  pay  money ;  that  the  lessor  could  have  no  suit  for 
money,  or  to  compel  operations  of  development  of  oil.  It  is  thence 
contended  that  the  contract  wants  the  essential  of  a  binding  contract, 
namely,  mutuality.  Under  this  view  the  lessor  could  renounce  or  re- 
voke the  lease  at  any  time,  because  if  not  binding  the  lessee  for  any- 
thing, neither  would  it  bind  the  lessor,  and  hence  the  second  lease 
would  be  an  election  by  Bunfill  not  to  be  bound,  and  would  confer 
good  title.  For  this  contention  we  are  cited  the  case  of  Eclipse  Oil 
Co.  V.  South  Penn  Co.,  47  W.  Va.  84,  34  S.  E.  923,  and  Glasgow  v. 
Chartiers  Oil  Co.,  152  Pa.  48,  25  Atl.  232.  We  differentiate  the  pres- 
ent case  from  the  Eclipse  Case,  from  the  fact  that  no  money  was 
paid  as  a  bonus  in  that  case,  whereas  one  of  $55  was  paid  for  the 
lease  in  this  case.  We  cannot  see  that  when  a  lessee  pays  a  money 
consideration  for  the  right  or  privilege  of  boring  for  oil  within  a 
fixed  time,  and,  in  default  of  so  doing,  of  paying  money  as  an  alter- 
native, he  has  no  vested  right  of  exploration,  but  his  privilege  may 
be  revoked  at  any  moment,  whether  the  limited  time  has  expired  or 
not.  If  that  be  the  true  view,  the  clause  of  cesser  is  needless,  because 
no  revocation  could  be  made  for  want  of  mutuality  only.  It  would 
seem  to  me  that  a  lease  of  this  character,  the  lessor  receiving  valu- 
able consideration  for  the  privilege  of  exploration  for  oil,  would 
confer  a  valid  right  of  exploration  for  the  time  and  on  the  terms 
spoken  of  in  it.  Such  would  seem  to  be  the  intent  of  the  parties  and 
the  justice  of  the  matter,  notwithstanding  the  contract  imposed  no  ob- 
ligation on  the  lessee  to  drill  or  pay.  The  lessor  has  been  paid  his 
price  for  giving  such  privilege.  It  seems  that  this  was  the  construc- 
tion of  the  Eclipse  Case  in  the  opinion  by  Judge  McWhorter  in  Har- 
ness V.  Eastern  Oil  Co.,  on  page  250  of  49  W.  Va.,  on  page  670  of 
38  S.  E.  Denying  the  aptness  in  that  case  of  the  Eclipse  Case,  he 
said:  "In  that  case  the  lessee  had  paid  nothing;  had  done  nothing." 
In  Lowther  Co.  v.  Guffey,  52  W.  Va.  88,  43  S.  E.  loi.  Judge  Dent, 
who  prepared  the  opinion  in  the  Eclipse  Case,  differed  the  two  cases 
because  of  $1  paid  as  a  bonus.  That  lease  imposed  no  obligation  on 
the  lessee.    In  Tibbs  v.  Zirkle,  55  W.  Va.  49,  46  S.  E.  701,  104  Am. 


COVENANTS    AND    CONDITIONS.  695 

St.  Rep.  977,  a  point  held  is :  "An  option  given  for  a  valuable  con- 
sideration cannot  be  revoked  until  the  time  limit  thereon  has  expired. 
If  such  option  is  without  consideration,  it  may  be  withdrawn  or  re- 
voked at  any  time  before  acceptance."  So  we  cannot  say  that  from 
mere  want  of  mutuality  Bunfill  could  ignore  the  first  lease. 

The  lessees  under  the  first  lease  neither  drilled  a  well  within  three 
months,  nor  paid  the  money  in  place  of  it  stipulated  in  that  lease. 
For  the  second  lease  it  is  contended  that  such  failure  of  itself  caused 
the  death  of  that  lease;  that  it  would  work  this  result  without  any 
act  on  the  part  of  the  lessor  declaring  a  forfeiture,  even  had  the  sec- 
ond lease  not  been  made ;  that  Bunfill  could  have  femained  quiet,  done 
nothing  to  manifest  an  intent  to  insist  upon  the  death  of  the  lease, 
and  it  would  have  come  to  its  end  absolutely  from  such  failure  alone ; 
that  the  "paper  is  self-destructive."  It  is  said  the  document  contains 
no  words  calling  for  an  act  declaring  a  forfeiture  to  end  it.  The 
contention  for  the  first  lease  is  that  an  oil  lease  implies  a  warranty  of 
good  title,  and  as  Bunfill  did  not  have  the  Sindledecker  ninth,  the 
title  was  not  good,  and  work  of  development  could  not  be  safely 
done,  and  he  could  not  insist  on  a  forfeiture.  Counsel  for  the  second 
lease  say  that  there  is  no  place  for  forfeiture,  as  the  first  lease  was 
at  an  end.  So  much  is  this  so  that  the  end  of  the  lease,  its  death 
from  want  of  compliance  with  its  terms,  could  not  be  waived,  and 
that  the  second  lease  could  have  no  effect  as  a  declaration  or  act  of 
forfeiture.  That  the  land  had  been  already  freed  from  the  first  lease, 
without  the  second  lease.  That  nothing  but  a  new  lease  to  the  first 
lessees  would  do.  Those  claiming  under  the  first  lease  say  that,  as 
Bunfill's  title  was  defective,  and  as  he  agreed  to  an  extension  of  time 
for  boring  a  well  or  paying  money  in  its  place,  as  below  stated,  he 
could  not  enforce  a  forfeiture ;  that  Bunfill  was  in  no  condition  to 
enforce  a  forfeiture.  The  other  side  says  that  it  cannot  be  held  that 
Bunfill  was  in  no  condition  to  declare  a  forfeiture  as  there  was  no 
forfeiture  to  be  declared,  because  the  lease  was  dead.  This  distinc- 
tion is  quite  refined  and  unpractical.  What  if  the  intsrument  does 
not  in  terms  provide  for  a  forfeiture  and  contain  the  word? 
What  [is]  the  plain  meaning  of  the  clause  that  for  failure  to 
drill  or  pay  money  the  lease  "shall  become  null  and  void  and 
all  rights  thereunder  shall  cease  and  determine"?  The  clause 
was  put  there  for  the  benefit  of  the  lessor.  Another  clause,  one 
giving  right  to  the  lessee  to  surrender  and  be  discharged  from  lia- 
bility, covered  his  case.  Surely  the  lessor  could  waive  this  clause 
made  for  his  protection.  It  cannot  be  asserted  that  there  is  anything 
in  this  clause  as  written  preventing  Bunfill  from  dispensing  with  it. 
That  a  forfeiture  may  be  waived  by  the  landlord  in  favor  of  a  tenant 
is  reasonable  and  clear  from  cases  cited  in  Hukill  v.  Myers,  36  W. 
Va.  639,  15  S.  E.  151.  See  Roberts  v.  Bettman,  45  W.  Va.  143,  30 
S.  E.  95. 

The  great  question  is,  Was  Bunfill,  under  the  circumstances  of 


696  OIL,    GAS    AND   OTHER    MINING    LEASES. 

defective  title  and  waiver  of  forfeiture  upon  the  facts  to  be  stated 
below,  in  a  condition,  on  principles  favored  in  equity,  to  make  the 
second  lease,  and  thus  declare  a  forfeiture  and  divest  the  right  of  the 
first  lessees  ?  The  circuit  court's  finding  is  that  Bunfill  was  not.  This 
finding  is  upon  much  oral  evidence  and  conflicting,  and  we  cannot 
reverse,  unless  we  can  say  that  such  finding  is  plainly  wrong.  We 
cannot  say  so.  That  BunfiU's  title  was  bad  no  one  disputes  and  he 
himself  admitted  it.  He  did  not  disclose  its  defects  to  the  first  les- 
sees, but  represented  to  them  that  it  was  good,  and  leased  the  whole 
tract.  Some  time  after  the  first  lease  was  made,  before  the  three 
months  had  gone,  Campbell  and  Swan  went  to  Bunfill  and  told  him 
of  the  fact  that  he  did  not  own  two-ninths  of  the  tract.  He  confessed 
the  fact.  They  told  him  he  must  secure  them.  He  agreed  to  do  so.  He 
made  two  trips  to  Ohio  to  get  in  these  two-ninths  at  their  request. 
He  agreed  to  hunt  up  the  Sindledecker  heirs  and  secure  in  some 
way  their  interest.  The  lessees  furnished  him  money  to  pay  travel- 
ing expenses  and  purchase.  He  went  to  Wellsville,  Ohio,  to  get  in- 
formation of  them.  He  learned  that  they  resided,  some  in  Taylor 
county,  others  in  Cumberland.  On  his  return  from  Wellsville  he  in- 
formed his  lessees  where  they  were  to  be  found,  and  it  was  agreed 
between  him  and  Campbell  and  Swan  that  Campbell  and  Swan 
should  go  to  those  heirs  and  arrange  for  securing  their  title,  and 
Campbell  went,  and  while  absent  on  this  mission  Bunfill  made  the 
second  lease,  without  notice  to  the  first  lessees.  It  was  distinctly 
agreed  that  Bunfill  should,  at  his  expense,  procure  this  outstanding 
right,  and  that  the  cost  should  go  to  the  credit  of  the  lessees  on  the 
money  payable  under  the  lease  on  commutation  of  drilling.  The 
lessees  contributed  to  get  a  deed  from  John  Bunfill  for  his  interest. 
All  this  is  inconsistent  with  the  idea  that  Bunfill  intended  to  rely  on 
the  strict  letter  of  the  forfeiture  clause.  Perhaps,  if  he  had  not 
agreed  to  get  in  the  title,  and  joined  with  his  lessees  to  do  so,  and 
undertaken  efforts  to  do  so,  and  agreed  to  credit  the  cost  on  the 
rental,  his  second  lease  would  be  good ;  perhaps  mere  badness  of  title 
would  not  have  stayed  the  lapse  of  the  lease,  but  when  we  reflect  that 
the  title  was  bad,  and  that  Bunfill  admitted  it  to  be  bad,  and  agreed 
to  join  in  the  effort  to  perfect  it,  and  agreed  that  the  cost  should  go 
on  the  commutation  money,  and  the  amount  of  the  expenditure  not 
being  known,  and  no  time  being  limited  to  Campbell  and  Swan  to 
carry  out  the  right  given  them  to  get  in  the  Sindledecker  share,  and 
the  Sindledecker  heirs  being  infants,  necessitating  resort  to  court 
proceedings,  and  these  lessees  were  actually  going  on  to  secure  these 
interests  within  reasonable  time,  we  must  conclude  that  Bunfill  thus 
dispensed  with  payment  of  the  $15  payable  at  the  close  of  the  three 
months,  and  thus  waived  the  forfeiture  and  extended  the  time. 
"Where  in  an  oil  lease  there  is  a  clause  of  forfeiture,  for  nonpay- 
ment of  rental,  but  the  lessor  consents  that  it  need  not  be  paid  at  the 


COVENANTS    AND    CONDITIONS.  697 

times  when  due,  and  indulges  the  lessee  and  acquiesces  in  his  failure 
to  pay,  there  is  no  forfeiture  for  nonpayment."  "In  case  of  such  a 
lease,  if  the  lessor  by  his  conduct  clearly  indicates  that  payment  will 
not  be  demanded  when  due,  and  thus  lulls  the  lessee  into  a  feeling 
of  security  and  throws  him  off  his  guard,  and  because  of  this  he  does 
not  make  payments  when  due,  the  landlord  cannot  suddenly,  without 
demand  or  notice,  declare  a  forfeiture,  and  there  is  no  forfeiture 
which  equity  would  recognize,  and,  if  there  is  in  such  case  technically 
a  forfeiture  at  law,  equity  would  relieve  against  it."  Hukill  v.  Myers, 
36  W.  Va..  639,  15  S.  E.  151.  "A  forfeiture  will  be  deemed  waived 
by  any  agreement,  declaration,  or  course  of  action  on  the  part  of  him 
who  is  benefited  by  such  forfeiture,  which  leads  the  other  party  to 
believe  that  by  conforming  thereto  the  forfeiture  will  not  be  in- 
curred." Hudson  V.  N.  Pacific  Ry.  Co.,  92  Iowa  231,  60  N.  W.  608, 
54  Am.  St.  Rep.  550.  And  we  must  not  forget  that  this  case  is  in  a 
court  of  equity,  which  frowns  upon  forfeitures  as  heavy  and  harsh, 
and  will  never  enforce  them,  but  will  generally  relieve  against 
them.  This  suit  is  to  enforce  a  forfeiture.  It  must  do  so 
if  relief  is  granted  the  second  over  the  first  lease.  Spies  v.  Arvon- 
dale,  60  W.  Va.  389,  55  S.  E.  464;  South  Penn.  Co.  v.  Edgell, 
48  W.  Va.  348,  37  S.  E.  596,  86  Am.  St.  Rep.  43 ;  Wheeling,  etc.,  R. 
Co.  V.  Triadelphia,  58  W.  Va.  487,  52  S.  E.  499 ;  Pheasant  v.  Kannah, 
60  S.  E.  618.  A  full  discussion  of  this  subject  is  in  8  Am.  &  Eng. 
Dec,  in  Eq.  180  and  notes.  We  find  there  the  following:  "A  court 
of  equity  will  leave  to  his  remedy  at  law — will  refuse  to  interfere  to 
grant  any  relief  to — one  who,  in  the  matter  or  transaction  concern- 
ing which  he  seeks  its  aid,  has  been  guilty  of  bad,  unrighteous  deal- 
ing, or  unconscionable  acts."  "Courts  of  equity  will  not  entertain 
bills  to  enforce  forfeitures,  but  leave  the  parties  to  their  remedies 
at  law." 

It  is  contended  that  the  lessees  under  the  first  lease  could  have 
drilled  for  oil  by  right  of  being  cotenants  of  the  Sindledecker  heirs, 
and  were  bound  to  do  so.  It  would  be  waste  by  law,  and  a  wrong 
by  our  statute.  Code  1899,  c.  92,  §  2  (Code  1906,  §  3390)  ;  30  Am. 
&  Eng.  Ency.  L.  (2d  Ed.)  265.  It  has  several  times  been  held  in 
this  state  that  one  tenant  in  common  cannot  commit  waste  by  ex- 
tracting oil.  Williamson  v.  Jones,^**  43  W.  Va.  562,  27  S.  E.  411, 
38  L.  R.  A.  694,  64  Am.  St.  Rep.  891  ;  Cecil  v.  Clark,  49  W.  Va. 
459,  39  S.  E.  202.  Chancellor  Kent  held  that  injunction  will  go  to 
stay  waste  "between  tenants  in  common,  where  the  waste  is  destruct- 
ive to  the  estate,  and  not  within  the  usual  and  legitimate  exercise 
of  the  enjoyment."  Hawley  v.  Clowes,  2  Johns.  Ch.  (N.  Y.)  132. 
It  changes  the  whole  character  of  the  inheritance.  The  Sindledeck- 
ers  owned  the  corpus  in  fee.  They  could  sue  or  enjoin  for  waste. 
In  the  Williamson  Case  Jones  had  interests  in  the  corpus,  and  it  was 

"  See  Williamson  v.  Jones,  post,  p.  737. 


698  OIL,    GAS    AND   OTHER    MINING    LEASES. 

held  he  could  not  take  oil.  High,  Inj.  §  692.  As  a  principle  of  law 
applicable  to  cases  in  general,  I  am  reluctant  to  say  that  in  every  case 
an  injunction  will  lie  for  one  tenant  against  his  cotenant  cutting  tim- 
ber, taking  coal  or  oil.  The  authorities  are  divided.  But  we  must 
remember  that  we  have  that  statute.  In  some  cases  he  may  be 
required  to  resort  to  an  action  for  his  share.  But  there  is  a  high 
authority  for  the  proposition.  5  Pomeroy's  Eq.,  in  i  Equitable  Rem., 
§  492,  says :  "It  was  formerly  thought  that,  because  of  the  nature 
of  their  legal  rights,  an  injunction  would  not  issue  between  tenants 
in  common  for  any  ordinary  act  of  waste,  either  legal  or  equitatble, 
but  that  acts  of  waste  so  destructive  as  to  go  beyond  the  requisites  of 
either  of  these  might  be  enjoined.  But  the  cases  show  that  the  exer- 
cise of  equity  jurisdiction  is  now  more  liberal,  and  any  acts  of  waste 
by  one  tenant  in  common  that  are  inconsistent  with  prudent  manage- 
ment of  the  estate,  or  that  jeopardize  the  interest  of  his  co-tenants, 
will  be  enjoined."  Pomeroy  cites  Hawley  v.  Clowes,  above.  Woods 
V.  Early,  95  Va.  307,  28  S.  E.  374,  and  many  other  cases.  And, 
even  if  the  lessees  might  have  drilled,  were  they  bound  to 
do  so,  and  subject  themselves  to  an  action  for  account  for 
the  share  of  the  Sindledecker  heirs?  Likely  owners  of  a  mine,  or 
lease  to  mine,  one  may  mine.  That  is  the  nature  of  the 
property;  but  in  this  case  the  lessees  had  an  oil  lease,  good  only 
for  a  part  of  the  estate.  The  Sindledeckers  owned  the 
corpus  of  the  ninth.  These  lessees,  and  they  were  not  co-tenants, 
so  as  to  give  the  lessees  right  to  take  oil.  They  did  not  hold  with 
Campbell  and  Swan  a  joint  estate  under  the  lease.  One  co-tenant 
can  make  a  lease  binding  another.  Could  not  the  Sindledeckers  have 
enjoined  the  first  lessees  from  drilling?  In  this  connection  it  is 
argued  that  the  majority  may  control,  and  therefore  the  lessees  hav- 
ing a  lease  from  the  owner  of  a  majority  of  the  undivided  interests 
could  drill.  They  are  said  to  be  a  mining  partnership,  subject  to 
the  control  of  a  majority.  That  is  so  where  the  work  has  been 
entered  upon.  But  this  is  not  a  case  of  a  mining  partnership.  Were 
the  lessees  under  the  first  lease  mining  partners  with  the  Sindledeck- 
ers? They  were  not  in  any  sense.  But  I  ask,  what  if  the  first  les- 
sees could  have  entered?  How  does  this  question  materialize  in 
view  of  the  fact  that  Bunfill  dispensed  with  drilling  or  paying, 
extended  the  time,  until  the  Sindledecker  right  should  be  procured? 
When  Pyle  took  the  second  lease,  he  had  full  knowledge  of  the  first 
lease,  and  solicited  Bunfill  to  lease  to  him.  A  court  of  equity  cannot 
look  with  much  favor  on  his  suit  to  enforce  a  forfeiture  to  his 
benefit. 

When  this  second  lease  was  taken,  the  term  of  the  first  lease,  five 
years,  had  not  expired.  If  it  had,  there  would  be  some  force  in  say- 
ing that  it  could  be  extended  only  by  a  new  lease ;  but  such  was  not 
the  case.  It  was  then  competent  for  Bunfill  to  waive  the  mere  for- 
feiture; the  first  lease  being  still  in  life.     From  want  of  title  and 


COVENANTS    AND    CONDITIONS.  699 

waiver  of  payment  by  Bunfill,  it  was  the  binding  duty  of  Pyle  to 
learn,  by  inquiry  from  the  first  lessees,  as  to  the  right  they  claimed, 
and  how  they  claimed,  and  we  may  say  that  he  would  have  learned 
that  Bunfill  had  agreed  to  procure  good  title  for  the  benefit  of  the 
first  lessees,  and  had  waived  the  forfeiture.    Knowledge  of  the  first 
lease  put  Pyle  on  inquiry,  and  he  is  affected  with  notice  of  the  right  of 
the  first  lessees  and  the  waiver  of  the  forfeiture.  Authorities  for  this 
proposition  are  given  in  Reed  v.  Bachman,  61  W.  Va.  at  page  464,  57 
S.  E.  at  page  774.  Pyle  was  thus  under  the  law  guilty  of  gross  negli- 
gence, to  say  the  least.     It  is  said  that  when  Campbell  and  Swan 
took  the  first  lease  they  knew  of  the  outstanding  titles.     They  deny 
it.     Perhaps  they  had  constructive  notice.     What  if  they  had  actual 
notice?   They  had  a  warranty  against  it,  since  an  oil  lease  implies  a 
warranty  for  quiet  enjoyment.     Headley  v.  Hoopengarner,  60  W. 
Va.  626^  55  S.  E.  744.     If  a  man  have  knowledge  of  a  lien  or  defect 
of  title,  yet  takes  a  general  warranty,  he  can  rely  on  the  warranty. 
Another  point  made  for  the  second  lease  is  that  a  tenant  cannot, 
while  in  possession,  attack  his  landlord's  title,  but  must  give  up  pos- 
session before  he  can  do  so.    This  rule  has  no  application  in  this 
case.     Campbell  and  Swan  never  took  possession.     There  was  no 
possession  to  give  up.    A  tenant  in  possession  cannot  defeat  his 
landlord's  title,  and  disavow  the  tenancy,  by  setting  up  a  hostile  title  ; 
but  this  principle  is  not  fitted  to  this  case.     The  lessees  do  not  say 
that  their  landlord's  title  is  bad  as  to  those  interests  which  he  owned. 
They  only  say  that  he  leased  all  the  tract,  as  if  no  other  person  had 
an  interest,  when  in  fact  another  had  such  interest.     This  is  a  case 
between  landlord  and  tenant,  growing  out  of  the  relation  under  the 
lease.     A  tenant  is  not  bound  to  pay  rent  when  he  gets  bad,  defective 
title.     It  involves  the  question  as  to  this  point,  whether  when  the 
landlord's  title  is  defective,  the  tenant  shall  forfeit  his  right  by  fail- 
ure to  drill  or  pay  rental.    *    *    * 

Our  conclusion  is  to  afiirm  the  decree  of  the  circuit  court. 


EASTERN  OIL  CO.  v.  COULEHAN  et  al. 

19C9.     Supreme  Court  of  Appeals  of  West  Virginia. 
65  W.  Va.  531,  64  S.  E.  836. 

Bill  by  the  Eastern  Oil  Company  against  John  C.  Coulehan  and 
others.  Decree  for  defendants  and  complainant  appeals.  Reversed 
and  rendered. 

Miller,  P.^^ — August  3,  1901,  defendant  and  wife  executed  and 
delivered  to  West  Union  Gas  Company  a  lease,  which  on  the  same 

"  Part  of  the  opinion  is  omitted. 


700  OIL,    GAS    AND   OTHER    MINING    LEASES. 

day  it  assigned  to  plaintiff,  and  whereby,  in  consideration  of  $250 
and  other  valuable  considerations,  the  said  lessors  granted  and  de- 
mised unto  said  lessee  all  the  oil  and  gas  in  and  under  a  tract  of  118 
acres  in  Doddridge  county,  and  also  said  tract  of  land  for  the  pur- 
pose and  exclusive  right  of  operating  thereon  for  oil  and  gas,  to- 
gether with  other  rights  usually  appertaining  to  such  leases,  and 
containing  this  habendum :  "To  have  and  to  hold  the  same  unto  the 
lessee  for  the  term  of  five  years  from  this  date,  and  as  much  longer 
as  oil  or  gas  is  produced,  or  the  rental  paid  thereon."  The  lease 
also  stipulates :  That  the  lessor  shall  be  paid  a  royalty  of  one-eighth 
part  of  all  the  oil  produced  and  saved,  and  thereafter  at  the  rate  of 
$200  yearly  for  each  gas  well  as  long  as  gas  therefrom  is  sold, 
payable  within  60  days  after  connecting  to  use  gas  therefrom ;  the 
lessor  to  have  gas  for  his  dwelling  from  any  gas  well  free  by  making 
connections,  and,  in  case  no  well  shall  be  completed  within  three 
months  from  the  date  thereof,  the  same  to  become  absolutely  void 
and  of  no  further  effect  whatever  on  either  party,  unless  the  lessee 
shall  pay  for  further  continuances  of  the  privileges  therein  mentioned 
the  sum  of  $50  quarterly,  payable  in  advance  until  a  well  shall  be 
completed.  That  the  lessee  may  at  any  time  reconvey  the  premises 
"thereby  granted"  and  thereupon  be  forever  discharged  from  all  lia- 
bility to  the  lessors  under  any  and  every  provision  thereof  accruing 
after  such  reconveyance  and  the  instrument  be  no  longer  binding  on 
either  party.  In  Ohio  a  lease  of  this  character,  for  a  consideration, 
with  granting  clause,  a  habendum,  a  condition  subsequent  or  defeas- 
ance clause,  and  a  surrendering  clause,  is  held  to  be  a  lease  and  not 
merely  a  license.  Brown  v.  Fowler,  65  Ohio  St.  507,  521,  63  N.  E. 
76,  citing  Woodland  Oil  Co.  v.  Crawford,  55  Ohio  St.  161,  44  N.  E. 
1093,  34  L.  R.  A.  62,  and  Martin  v.  Jones,  62  Ohio  St.  519,  525,  57 
N.  E.  238.  In  this  state  and  in  Pennsylvania  such  leases  are  gen- 
erally treated  as  mere  licenses  vesting  no  estate ;  the  title  thereto, 
both  as  to  the  period  of  years  and  the  term  thereafter,  remaining 
inchoate  and  contingent  on  the  finding  of  oil  and  gas.  Crawford 
V.  Ritchey,  43  W.  Va.  252,  27  S.  E.  220;  Steelsmith  v.  Gartlan,  45 
W.  Va.  27,  29  S.  E.  978,  44  L.  R.  A.  107;  Headley  v.  Hoopengarner, 
60  W.  Va.  626,  55  S.  E.   744. 

The  plaintiff,  having  paid  the  cash  consideration,  entered,  and  reg- 
ularly paid  the  quarter  annual  installments  of  rent  in  advance  for  the 
full  period  of  five  years,  but  did  not  begin  the  work  of  drilling  for 
oil  or  gas  until  June,  1906,  after  the  last  quarter  had  begun.  It 
owned  other  leases  adjoining  and  in  the  same  neighborhood,  on  some 
of  which  it  had  put  down  wells,  the  wells  drilled,  defining  defendant's 
land  as  gas,  but  not  oil,  producing  territory.  We  take  judicial  notice 
that  gas,  unlike  oil,  cannot  be  brought  to  the  surface  and  stored  to 
await  a  market  for  it,  but  must  remain  in  nature's  storehouse,  and, 
unless  allowed  to  waste  away,  taken  out  only  as  and  when  the  pro- 
ducer may  be  able  to  find  customers  to  take  and  consume  it. 


COVENANTS    AND    CONDITIONS.  7OI 

Plaintiff,  having  then  invested  in  bonus  money  and  rentals  $1,200, 
in  June,  1906,  began  a  well  on  defendant's  land,  and  about  July  20th 
struck  gas  in  the  salt  sand  at  the  depth  of  about  1,240  feet,  which, 
when  gauged  and  tested,  showed  a  capacity  of  about  3,000,000  cubic 
feet  per  day.  After  striking  this  gas,  however,  he  concluded  to  go 
deeper,  to  the  lower  or  Indian  sand.  The  well  was  begun  in  ample 
time  to  have  completed  it  in  the  lower  sand,  but  shortage  of  water, 
due  to  the  drought,  caused  a  delay  of  several  days.  Finding  the  time 
growing  short,  the  defendant  declining  to  extend  the  term  except 
upon  terms  deemed  oppressive,  orders  were  given  the  drillers  to  work 
on  Sunday.  The  defendant  seeing  the  drillers  at  work  suggested  that 
they  were  laying  themselves  liable  to  arrest  and  conviction  for  work- 
ing on  Sunday,  and  they  were  frightened  away  and  refused  to  work. 
Thirty  minutes,  about,  after  midnight  of  August  2,  1906,  defendant, 
with  witnesses,  appeared  at  the  well,  where  the  drillers  were  at  work 
on  the  night  tower,  and,  inquiring  of  and  being  informed  by  them 
that  the  well  was  not  yet  completed  in  the  lower  sand,  notified  them 
that  the  lease  had  expired  at  midnight,  that  the  rights  of  lessee  had 
ceased,  and  that  all  from  that  time  would  be  treated  as  trespassers. 
The  drillers,  in  the  absence  of  the  owners,  stopped  drilling,  went 
home,  and  went  to  bed,  and  work  was  not  resumed  until  noon  of 
August  3d,  a  loss  of  about  12  hours  in  time.  The  drilling  then 
begun  was  continued  until  shortly  before  i  o'clock  of  August  4th, 
when  gas  in  immense  quantities  was  struck  in  the  Indian  sand ;  the 
only  interruption  being  the  second  appearance  of  the  defendant  with 
witnesses  shortly  after  the  previous  midnight  to  again  notify  the 
drillers  that  the  lease  had  then  expired  and  ordering  them  off  the 
premises.  The  plaintiff  having  refused  to  vacate  the  premises,  the 
defendant  on  August  4,  1906,  instituted  against  the  plaintiff  in  the 
circuit  court  of  Doddridge  county  a  suit  in  unlawful  detainer  to 
recover  possession  of  the  property. 

On  December  8,  1906,  the  plaintiff  upon  its  original  bill  obtained 
from  said  circuit  court  of  Doddridge  county  an  injunction  protecting 
it  in  the  possession  and  occupancy  of  said  land,  and  enjoining  defend- 
ant from  in  any  manner  interfering  with  any  of  its  rights  specified 
in  said  lease  of  August  3,  1901,  and  from  in  any  manner  interfering 
with  it  in  the  use,  occupancy,  and  operation  of  said  land  for  oil  and 
,gas  purposes  under  said  lease,  and  also  from  prosecuting  his  said  ac- 
tion of  unlawful  detainer  until  plaintiff's  rights  under  said  lease 
should  be  settled  and  determined  in  this  suit,  and  until  the  further  or- 
der of  the  court.  The  further  prayer  of  the  bill  was  on  the  grounds 
alleged  that  the  court  would  decree  plaintiff  vested  with  the  title  to 
and  interest  in  all  the  oil  and  gas  according  to  and  subject  to  the 
terms  of  said  lease,  and  that  the  said  lease  be  held  firm  and  valid.  At 
January  rules,  1907,  the  plaintiff  filed  an  amended  bill  amplifying  the 
grounds  of  relief  alleged  in  the  original  bill,  renewing  the  prayer 
thereof,  and  upon  hearing  upon  said  original  and  amended  bill  and 


702  OIL,    GAS    AND    OTHER    MINING    LEASES. 

the  separate  answer  of  John  C.  Coulehan  thereto,  and  upon  the  depo- 
sitions and  proofs  taken  and  filed  in  the  cause,  the  decree  of  Septem- 
ber 7,  1907,  appealed  from,  was  pronounced  by  the  circuit  court, 
whereby  the  court,  being  of  the  opinion  that  the  evidence  did  not  sus- 
tain the  material  grounds  for  relief  alleged,  decreed  that  said  injunc- 
tion be  wholly  dissolved,  the  plaintiff's  original  and  amended  bills 
dismissed,  but,  though  expressing  no  opinion  as  to  the  production  of 
gas  in  the  salt  sand,  reserved  to  plaintiff  the  right  to  interpose  the 
same  as  a  defense  to  said  action  of  unlawful  detainer. 

The  grounds  for  relief  alleged  and  especially  relied  upon  by  plain- 
tiff are :  ( i )  That  having,  for  the  consideration  paid  and  acknowl- 
edged, purchased  the  lease,  promptly  paid  all  the  bonus  and  rental 
money  for  the  full  term  of  five  years,  and  within  that  period  having 
actually  discovered  and  produced  gas  in  the  salt  sand,  it  thereby  ac- 
quired a  vested  estate  in  and  the  right  to  produce  oil  and  gas  accord- 
ing to  the  provision  of  the  lease.  (2)  That  whether  or  not  the  first 
ground  be  good  it  could,  and  but  for  the  alleged  improper  conduct 
and  interference  of  defendant  it  would,  have  discovered  and  pro- 
duced gas  in  the  Indian  sand  before  the  five  years  expired. 

The  defendant  relies  upon  the  theories:  (i)  That  even  if  oil  and 
gas  was  discovered  in  the  salt  sand  in  July,  it  was  not  utilized,  but 
abandoned,  evidenced  by  drilling  deeper,  pulling  the  casing,  whereby 
it  was  drowned  out  by  the  water,  and  defendant  thereby  deprived  of 
the  use  of  the  gas  therefrom  for  domestic  purposes  according  to  the 
terms  of  the  lease.  (2)  That  by  the  provision  of  the  lease  the  term 
of  five  years  expired  at  midnight  of  August  2d,  and  not  as  plaintiff 
claims  at  midnight  of  August  3,  1906,  and  that  there  was  no  such 
interference  on  his  part  with  the  completion  of  the  well  in  the  Indian 
sand  within  the  five  years,  as  claimed  by  him,  as  to  entitle  plaintiff 
at  law  or  in  equity  to  an  extension  of  time,  and  that  therefore  the 
rights  of  plaintiff  under  the  lease  were  wholly  terminated  at  mid- 
night of  August  2d,  if  not  then  certainly  at  midnight  of  August  3d. 
(3)  That  equity  has  no  jurisdiction  of  the  subject-matter  of  plain- 
tiff's bill. 

By  its  decree  the  court  below  was  manifestly  of  the  opinion  that 
the  bill  presented  no  grounds  of  equitable  relief,  and  that  whatever 
rights,  if  any,  plaintiff'  acquired  by  its  alleged  discovery  of  gas  within 
the  five  years,  was  available  at  law  as  a  defense  to  defendant's  suit 
of  unlawful  detainer,  wherefore  its  reservation  in  the  said  decree.  If 
plaintiff's  rights  depended  solely  on  the  discovery  of  gas  in  the  first 
sand,  there  would  be  force  in  this  view  of  the  court,  although  juris- 
diction in  equity  to  settle  all  questions  as  to  the  validity  and  priority 
of  leases,  for  oil  and  gas  and  other  minerals  and  mineral  rights, 
where  the  parties  claim  under  the  same  title,  has  been  established 
by  a  long  line  of  decisions  of  this  court,  beginning  perhaps  with 
Thomas  v.  Hukill,  34  W.  Va.  385,  12  S.  E.  522;  and  including  Wil- 
liamson v.  Jones,  39  W.  Va.  231,  19  S.  E.  436,  25  L.  R.  A.  222, 


COVENANTS    AND    CONDITIONS.  703 

Bettman  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271,  36  L.  R.  A.  566, 
Crawford  v.  Ritchey,  43  W.  Va.  252,  t.'j  S.  E.  220,  Steelsmith  v. 
Gartlan,  45  W.  Va.  -zj,  29  S.  E.  978,  44  L.  R.  A.  107,  Lowther  Oil 
Co.  V.  Guifey,  52  W.  Va.  88,  43  S.  E.  loi,  Lowther  Oil  Co.  v.  Miller- 
Sibley  Co.,  53  W.  Va.  501,  44  S.  E.  433,  97  Am.  St.  Rep.  1027,  Pyle 
V.  Henderson,  55  W.  Va.  122,  46  S.  E.  791,  Starn  v.  Huffman,  62 
W.  Va.  422,  59  S.  E.  179,  and  other  cases,  and  ending  with  Suit  v. 
Hochstetter  Oil  Co.,  63  W.  Va.  317,  61  S.  E.  307,  and  Pheasant  v. 
Hanna,  63  W.  Va.  613,  60  S.  E.  618.  Jurisdiction  in  equity  was 
maintained  in  many  of  these  cases  on  the  well-recognized  ground 
of  avoidance  of  multiplicity  of  suits,  removal  of  cloud  and  quieting 
of  title,  accounting,  avoidance  of  forfeiture,  and  specific  execution  of 
contracts.  And  it  has  been  held  by  this  court  in  Kilcoyne  v.  Oil  Co., 
61  W.  Va.  538,  56  S.  E.  888,  Knotts  v.  McGregor,  47  W.  Va.  566, 
35  S.  E.  899,  and  Headley  v.  Hoopengarner,  60  W.  Va.  626,  55  S.  E. 
744,  that  the  covenant  for  peaceable  and  quiet  possession  implied  in 
every  lease  for  oil  and  gas  is  not  limited  to  the  right  of  exploration, 
but  extends  also  to  the  right,  after  finding  oil  or  gas,  to  produce  the 
same,  and  that  injunction  is  the  proper  remedy  for  enforcement  of 
such  covenant  or  to  protect  the  exclusive  right  of  the  lessee  under  the 
contract.  Transportation  Co.  v.  Pipe  Line  Co.,  22  W.  Va.  621,  46 
Am.  Rep.  527 ;  Tufts  v.  Copen,  37  W.  Va.  623,  16  S.  E.  793 ;  Brown 
V.  Spilman,  155  U.  S.  673,  15  Sup.  Ct.  245,  39  L.  Ed.  304.  In  Penn- 
sylvania we  find  that  it  has  been  held  that  a  preliminary  injunction 
will  be  awarded  against  a  lessor  where  he  has  made  a  re-entry  under 
a  claim  of  forfeiture  and  the  claim  is  disputed  on  every  ground  on 
which  he  puts  it.  Thornton  on  Oil  &  Gas,  120,  citing  Poterie  Gas  Co. 
V.  Poterie,  153  Pa.  10,  25  Atl.  1107,  and  Duffield  v.  Rosenzweig,  144 
Pa.  520,  23  Atl.  4.  The  doctrine  of  these  cases  on  the  subject  of 
equitable  jurisdiction  has  never,  we  believe,  been  questioned  in  this 
court,  except  that  in  Freer  v.  Davis,  52  W.  Va.  i,  43  S.  E.  164,  59 
L.  R;  A.  556,  94  Am.  St.  Rep.  895,  the  first  point  of  the  syllabus  of 
Bettman  v.  Harness,  supra,  so  far  as  it  relates  to  the  jurisdiction  to 
settle  the  title  and  boundary  of  lands  as  between  adverse  claimants, 
when  the  plaintiff  has  no  equity  against  the  party  who  claims  ad- 
versely to  him,  was  overruled. 

But  as  we  view  this  case  the  rights  of  the  plaintiff  are  not  wholly 
dependent  on  the  discovery  of  gas  in  the  salt  sand.  The  fact  of 
such  discovery  within  the  meaning  of  the  lease  is  controverted.  The 
question  whether  the  gas  in  that  sand  was  not  abandoned  and  the 
rights  of  the  plaintiff,  if  any,  lost  thereby,  are  raised  here,  and  no 
doubt  would  be  raised  in  the  trial  of  the  action  at  law,  so  that  if  the 
plaintiff  has  any  other  rights  of  an  equitable  nature  to  assert  against 
the  defendant  of  which  a  court  of  equity  can  take  cognizance,  or  its 
defense  at  law  would  not  be  as  complete,  adequate,  and  certain  as  in 
a  court  of  equity  it  should  not  be  required  to  relinquish  its  equitable 
rights.     Hogg's  Equity  Proc.  §  3,  and  state  and  federal  cases  cited ; 


704  OIL,    GAS    AND    OTHER    MINING    LEASES. 

Eaton  on  Equity,  31,  and  cases  cited.  As  the  court  said  in  Nease  v. 
Insurance  Co.,  32  W.  Va.  283,  9  S.  E.  233 :  "A  doubtful  or  partial 
remedy  at  law  does  not  exclude  the  injured  party  from  relief  in 
equity."  And  in  Robinson  v.  Braiden,  44  W.  Va.  183,  28  S.  E.  798: 
"A  defendant  at  law,  having  a  legal  defense  to  the  action  and  a 
distinct  ground  for  equitable  relief  against  the  plaintiff's  claim,  may 
bring  his  suit  in  equity  without  waiting  for  the  determination  of  the 
action  at  law,  and  may,  without  being  compelled  to  waive  his  legal 
defense  by  confessing  judgment,  have  a  hearing  in  the  court  of 
equity  on  the  merits  of  his  case  and  a  decree  for  the  proper  relief." 
These  cases  were  affirmed  in  Gas  Co.  v.  Window  Glass  Co.,  63  W. 
Va.  266,  61  S.  E.  329.  Equity  retains  its  jurisdiction  to  relieve  from 
a  forfeiture  notwithstanding  it  may  be  relieved  at  law.  Hogg's 
Equity  Proc.  §  587,  p.  678,  citing  2  Story,  Equity  Jur.  (4th  Ed.) 
§  1 301.  Indeed,  this  is  such  a  well-recognized  rule  that  it  requires 
no  citation  of  authority  to  sustain  it. 

One  of  the  questions  presented,  but  particularly  applicable  to  the 
rights  of  the  plaintiff  involved  in  the  discovery  of  gas  in  the  second 
sand,  but  somewhat  apropos  also  to  the  discovery  of  gas  in  the  salt 
sand  is :  When  did  the  five-year  term  expire  ?  *  *  *  q^j.  conclu- 
sion, based  on  our  statute  and  these  authorities,  is  that,  where  a  con- 
tract of  lease  of  the  character  of  that  involved  here  requires  of  the 
lessee  affirmative  acts  to  be  done  within  a  certain  period  stipulated 
from  the  date  thereof,  unless  there  is  something  in  the  instrument  it- 
self evincing  a  different  intention  on  the  part  of  the  parties  thereto, 
the  date  of  the  instrument  will  be  excluded  in  the  computation  of 
time. 

But  it  is  claimed  that  the  receipts  taken  by  plaintiff  for  the  quart- 
erly installments  of  rent  show  a  different  construction  by  the  parties, 
which  should  prevail.  We  do  not  think  so.  The  rule  invoked  is 
applicable  only  when  the  words  of  the  instrument  are  ambiguous. 

Now  as  to  the  two  main  questions :  First,  was  gas  discovered  in 
the  salt  sand,  and,  if  so,  did  the  plaintiff  thereby  become  vested  with 
an  estate  in  the  right  to  produce  oil  and  gas,  which  has  not  been 
lost  by  abandonment  or  otherwise?  It  is  not  controverted  that  gas 
in  some  quantity  was  struck  in  this  sand ;  but  an  effort  was  made, 
and  some  evidence  offered,  tending  to  show  that  it  was  not  of  suffi- 
cient quantity  for  profitable  production,  and  it  is  claimed  the  plaintiff 
by  going  on  down  with  same  well  to  deeper  sand,  and  by  subse- 
quently pulling  the  casing  and  allowing  the  water  to  come  in  and 
flood  out  the  gas  in  the  first  sand,  must  be  treated  as  having  aban- 
doned the  gas  in  that  sand,  and  therefore  as  not  having  acquired  any 
vested  right  to  produce  gas  from  it  or  from  the  lower  sand.  But  the 
positive  evidence  of  the  drillers  and  others,  tested  by  the  gauge,  is 
that  gas  sufficient  for  profitable  production  was  obtained  in  this  first 
sand,  and  plaintiff  denies  any  intention  to  abandon  it,  claiming  that 
in  going  to  the  deeper  rock  its  intention  was  to  also  test  the  land  for 


COVENANTS    AND    CONDITIONS.  7^5 

oil  and  gas  in  that  sand.  Our  cases  seem  to  clearly  hold  that  dis- 
covery of  oil  or  gas  is  alone  sufficient  to  vest  the  right — a  right,  it 
is  true,  which  may  be  lost  by  abandonment,  manifested  by  neglect 
to  produce,  or  pursue  the  work  of  production  and  further  develop- 
ment. Steelsmith  v.  Gartlan,  45  W.  Va.  27,  29  S.  E.  978,  44  L.  R. 
A.  107 ;  Lowther  Oil  Co.  v.  Guifey,  52  W.  Va.  88,  43  S.  E.  loi ; 
Lowther  Oil  Co.  v.  Miller-Sibley  Co.,  53  W.  Va.  505,  44  S.  E.  433, 
97  Am.  St.  Rep.  1027;  Oil  Co.  v.  Gas  Co.,  51  W.  Va.  583,  591,  42 
S.  E.  655,  59  L.  R.  A.  566.  See,  also,  Thornton  on  Oil  &  Gas,  §§  53, 
70.  and  cases  cited.  In  Oil  Co.  v.  Gas  Co.,  supra,  at  page  591  of  51 
W.  Va.,  at  page  658  of  42  S.  E.  (59  L.  R.  A.  566),  it  is  said  :  "After 
the  discovery  of  oil  in  paying  quantities,  it  is  held  that  title  does 
vest  in  the  lessee ;  but  there  is  no  case  which  goes  so  far  as  to  an- 
nounce that,  after  mere  discovery  of  oil,  the  lessee,  upon  the  assump- 
tion of  a  vested  interest  or  title,  may  cease  operation,  refuse  to  de- 
velop the  property,  tie  up  the  oil  by  his  lease,  and  simply  hold  it  for 
speculative  purposes,  or  to  await  his  own  pleasure  as  to  the  time  of 
development." 

But  what  of  the  fact  here?  After  discovery  of  gas  in  the  first 
sand,  the  lessee  went  right  on  down,  with  the  same  hole,  it  is  true, 
succeeding  thereby  in  finding  greater  quantities  of  gas  in  the  lower 
strata,  and  rendering  the  defendants'  land  and  its  lease  still  more 
valuable.  We  have  no  case  directly  holding  that,  where,  oil  or  gas 
has  not  been  first  produced  from  the  rock  in  which  they  are  first 
found,  there  is  no  abandonment  by  going  deeper  for  the  product  in 
some  lower  strata;  but  we  have  a  case,  where  a  well  had  ceased 
to  produce  oil  in  the  first  sand,  saying:  "No  one  can  claim  that  under 
such  lease,  if  the  lessee  go  on  in  further  exploration,  his  right  is 
lost.  He  may  go  on  in  a  reasonable  time."  Ammons  v.  Toothman,  59 
W.  Va.  165,  169.  53  S.  E.  13,  115  Am.  St.  Rep.  908.  We  would 
have  to  say  on  the  weight  of  the  evidence  that  gas  was  found  by 
plaintifif  in  the  first  sand,  in  sufficient  quantities  to  vest  in  it  the  right 
to  produce  oil  or  gas  from  said  land,  and  that  there  was  no  intention 
to  abandon  that  right  by  going  deeper  with  the  same  well  to  the 
lower  rock.  Having  discovered  gas  in  the  first  sand,  and  almost 
immediately  thereafter  in  larger  quantities  in  the  lower  sand,  what 
was  to  preclude  plaintiff  from  returning  to  the  first  sand,  and  either 
from  the  same  well,  or  from  a  new  well  drilled,  again  tapping  that 
reservoir,  discovered  by  it,  and  producing  gas  also  from  it?  Of 
course,  if  gas  had  not  been  found  in  the  lower  rock,  on  the  principle 
announced  in  the  case  last  cited,  production  of  gas  from  the  first 
sand,  after  discovery,  could  not  long  be  deferred,  without  incurring 
the  penalty  of  forfeiture  or  abandonment. 

But  suppose  we  are  wrong  in  our  conclusion  on  the  first  question, 
what  rights,  if  any.  did  the  plaintiff  acquire  by  the  slightly  belated 
discovery  of  gas  in  the  Indian  sand  ?  It  is  conceded  the  Indian  sand 
was  not  penetrated  and  the  gas  gotten  there  until  about  i  o'clock  of 

45 — Mining  Law 


706  OIL,    GAS    AND   OTHER    MINING   LEASES. 

August  4th,  some  12  hours  after  the  5  years  had  expired.  What  is 
the  proper  construction  of  the  lease  as  to  time  ?  It  is  for  five  years 
from  date  and  as  much  longer  as  oil  or  gas  is  produced  or  the  rental 
paid  thereon.  If  oil  or  gas  was  produced  within  the  five  years 
given  for  exploration,  the  full  term  thereof  was  as  surely  for  as  much 
longer  as  oil  or  gas  should  be  produced,  as  it  was  for  the  term  of  five 
years  in  which  to  explore.  Failure  to  produce  oil  or  gas  within  that 
time  therefore,  while  not  strictly  or  technically  working  a  forfeiture 
of  any  further  right  to  explore  or  produce  oil  or  gas,  resulted  in  the 
same  thing  to  plaintiff,  and  we  perceive  no  reason  why  in  a  proper 
case  equitable  principles  applicable  in  cases  of  technical  forfeiture 
should  not  be  applied.  The  same  necessity  therefor,  in  order  to  pre- 
vent a  gross  injustice,  may  arise  in  the  one  case  as  in  the  other.  It  is 
said,  however,  that  in  contracts  of  this  kind  time  is  of  the  essence 
thereof,  and  this  proposition,  for  which  authorities  are  cited  by  coun- 
sel, is  not  controverted ;  but  the  case  v/e  have  in  hand  is  one  where 
the  plaintiff'  was  legally  entitled  to  the  full  term  of  five  years  given 
for  exploration,  without  let  or  hindrances  of  the  lessor.  Indeed,  the 
lessee  by  the  implied  covenants  of  his  deed  was  entitled  to  the  protec- 
tion of  the  lessor  therein.  The  evidence  satisfies  us  that,  though 
defendant  may  not  have  been  guilty  of  serious  breach  of  the  implied 
covenants  of  his  deed,  yet  that  he  v;as  anxious  tl:c  lessee  should  fail 
to  get  to  the  Indian  sand  in  time,  did  nothing  to  aid  him,  and  actually 
succeeded  by  his  suggestions  in  preventing  work  on  Sunday,  and 
caused  a  loss  of  about  12  hours'  time  after  midnight  of  August  2d, 
when  he  had  no  right  of  interference,  but  owed  a  positive  duty  to 
plaintiff'  to  protect  it  in  its  rights.  The  drillers  Kenney  and  Gaffney 
give  it  as  their  opinion  that  had  they  not  been  thus  interrupted  the 
well  could  have  been  drilled  into  the  Indian  sand  and  gas  produced 
from  it  before  the  time  expired. 

Do  these  facts  and  circumstances  give  rise  to  no  equitable  rights 
against  defendant?  Shall  he  be  permitted  to  take  advantage  of  his 
own  wrong  in  this  v/ay?  And  if  he  had  not  so  interfered  and  the 
well  could  not  have  been  drilled  in  within  the  time,  are  there  no  prin- 
ciples available  to  a  court  of  equity  upon  which  the  plaintiff  can  be 
relieved  from  the  gross  injustice  which  the  defendant  seeks  to 
inflict  upon  it?  The  plaintiff'  was  acting  in  good  faith,  had  invested 
large  sums  of  money.  The  plaintiff  lost  nothing,  but  he  got  the 
benefit  of  the  successful  search,  and  wherein  has  he  been  wronged? 
Defendant's  counsel  cite  us  to  Thornton  on  Oil  &  Gas,  §  141,  for  the 
proposition  that,  "although  a  well  be  commenced  in  time,  if  it  be 
not  completed  in  time  the  lease  will  terminate."  For  this  Thornton 
cites  Cleminger  v.  Baden,  159  Pa.  16,  28  Atl.  293,  a  case  in  which, 
though  the  well  was  commenced  in  time,  there  was  no  intention  to 
complete  it  in  tim^e.  It  was  not  begun  in  good  faith,  and  it  was  very 
properly  held  the  beginning  of  the  well  did  not  prevent  a  forfeiture. 
The  other  cases  cited  are  of  the  same  character,  and  are  not,  we 


COVENANTS    AND    CONDITIONS.  707 

think,  in  conflict  with  the  conclusion  we  have  reached  in  this  case. 
A  lessor  should  not  be  heard  to  complain  of  a  default  caused  by  him- 
self, or  permitted  to  take  advantage  of  his  own  wrong.  Delmar  Oil 
Co.  V.  Bartlett,  62  W.  Va.  700,  59  S.  E.  634;  Cheney  v.  Libby,  134 
U.  S.  68,  10  Sup.  Ct.  498,  33  L.  Ed.  818 ;  Stahl  v.  Van  Vleck,  53  Ohio 
St.  136,  41  N.  E.  35  ;  Hukill  v.  Guffey,  37  W.  Va.  426,  16  S.  E.  544. 

We  perceive  that,  upon  the  facts  shown,  the  plaintiff  is  entitled  to 
relief  by  injunction  upon  at  least  two  well-recognized  grounds  of 
equitable  jurisdiction:  First,  upon  the  principle  applicable  in  cases 
calling  for  relief  from  a  forfeiture ;  second,  upon  the  ground  that 
where  there  has  been  a  substantial  compliance  with  the  contract, 
and  gross  injustice  would  be  inflicted  upon  the  plaintiff  by  denying 
him  relief,  relief  should  be  granted.  As  we  have  said,  the  case  in 
hand  does  not,  strictly  speaking,  involve  forfeiture,  but  is  one,  we 
think,  calling  for  the  application  of  the  same  principles.  The  rea- 
sons therefor  are  the  same  in  both  cases.  "The  reason  of  the  law  is 
the  life  of  the  law."  "Affirmative  relief  against  penalties  and  for- 
feitures," as  was  said  by  this  court  in  Craig  v.  Hukill,  37  W.  Va. 
520,  16  S.  E.  363,  "was  one  of  the  springs  or  fountains  of  equity 
jurisdiction,  and  the  jurisdiction  was  very  early  exercised;  and  it 
would  be  going  in  the  very  opposite  direction  ancl  acting  contrary 
to  its  very  essential  principles  to  affirmatively  enforce  a  forfeiture," 
citing  Story,  Pomeroy,  and  Bishop  on  this  subject.  Unless  the  de- 
linquency has  been  willful,  the  court  has  discretionary  power  in  rela- 
tion thereto.  Railroad  Co.  v.  Triadelphia,  58  W.  Va.  516,  52  S.  E. 
499,  citing  Noyes  v.  Anderson,  124  N.  Y.  175,  26  N.  E.  316,  21  Am. 
St.  Rep.  657,  and  other  cases.  In  Pheasant  v.  Hanna,  supra,  juris- 
diction in  equity  was  upheld  to  relieve  a  mining  lessee  from  a  mere 
technical  forfeiture. 

Now  on  the  subject  of  substantial  performance  of  the  contract: 
There  can  certainly  be  no  question  as  to  the  fact  that  the  plaintiff 
substantially  performed  its  contract.  It  had  discovered  gas  in  one 
sand,  and  was  about  to  find  it  in  a  lower  sand  in  still  greater  quan- 
tities, and  we  cannot  say  from  the  evidence  that,  but  for  the  improper 
interference  by  the  defendant  with  its  operation,  it  would  not  have 
discovered  the  gas  in  the  lower  sand  within  the  term  of  five  years. 
Where  there  has  been  such  substantial  performance  of  a  contract, 
equity  may  set  aside  or  disregard  a  forfeiture  occasioned  by  a  failure 
to  comply  with  the  very  letter  of  an  agreement,  i  Pomeroy,  §  451,  p. 
756,  citing  Hagar  v.  Buck,  44  Vt.  285,  5  Am.  Rep.  368,  and  Bliley 
V.  Wheeler,  5  Colo.  App.  287,  38  Pac.  603.  And  this  court  in  Rail- 
road Co.  V.  Triadelphia,  page  517  of  58  W.  Va.,  page  511  of  52  S. 
E.,  recognizes  the  doctrine  announced  in  Henry  v.  Tupper,  29  Vt. 
358,  opinion  by  Chief  Justice  Redfield,  that  relief  may  be  granted  in 
equity  even  where  the  condition  is  for  the  performance  of  collateral 
acts. 

For  the  reasons  given  we  think  the  plaintiff'  has  made  out  a  case 


yoS  OIL,    GAS    AND   OTHER    MINING   LEASES. 

entitling  it  to  relief  in  equity,  and  the  decree  which  the  circuit  court 
should  "have  entered  will  he  entered  here,  making  perpetual  the  in- 
junction awarded  upon  the  original  and  prayed  for  therein  and  in  the 
amended  bill,  and  that  the  plaintiff  have  its  costs  in  this  court  and  in 
the  circuit  court  in  this  behalf  expended. 


McGRAW  OIL  &  GAS  CO.  et  al.  v.  KENNEDY  et  al. 

1909.     Supreme  Court  of  Appeals  of  West  Virginia. 
65  W.  Va.  595,  64  S.  E.  1027. 

The  McGraw  Oil  &  Gas  Company  filed  a  bill  against  R.  W.  Ken- 
nedy and  the  Crystal  Ice  Company,  and  thereafter  Kennedy  and  the 
ice  company  filed  a  bill  against  the  McGraw  Oil  &  Gas  Company, 
the  South  Penn  Oil  Company,  and  another.  The  cases  were  heard 
together  and  from  the  decree  the  Crystal  Ice  Company,  Kennedy, 
and  the  South  Penn  Oil  Company  appeal.    Reversed  and  remanded. 

Bkannon,  J.^- — Hugh  Evans,  on  September  20,  1899,  leased  a 
tract  of  528  acres  of  land  in  Taylor  county  to  U.  S.  Ditman  and  J.  C. 
Gawthrop  for  production  of  oil  and  gas.  The  lease  provided  that 
Evans  have  free  of  charge  gas  for  use  in  his  residence ;  the  lease  to 
continue  for  the  term  of  five  years  "and  so  long  thereafter  as  oil  or 
gas,  or  either  of  them,  is  produced  therefrom  by  the  party  of  the  sec- 
ond part,  heirs,  executors,  administrators  or  assigns."  The  lease  deed 
provided  that  the  lessee  deliver  into  pipe  line  to  the  credit  of  Evans 
one  eighth  of  oil  produced  and  pay  $200  yearly  for  "each  gas  well  the 
product  from  which  is  marketed  and  used  off  the  premises."  *  *  * 
Ditman  and  Gawthrop  assigned  the  lease  to  the  South  Penn  Oil  Com- 
pany. Later  the  South  Penn  Company  assigned  the  estate  in  the  gas 
to  the  Hope  Natural  Gas  Company,  reserving  the  estate  in  the  oil. 
Later  the  Hope  Natural  Gas  Company  assigned  the  gas  right  to 
R.  W.  Kennedy  to  hold  in  trust  for  the  Crystal  Ice  Company,  a  cor- 
poration engaged  in  manufacturing  ice  in  the  city  of  Grafton.  *  * 
"  On  March  20,  1907,  Evans  leased  the  same  tract  to  the  McGraw 
Oil  &  Gas  Company.  The  latter  company  had  full  notice  of  the  firft 
lease,  when  it  leased,  and  notice  was  served  on  it  by  Kennedy  of  his 
claim  of  title,  and  warning  the  McGraw  Oil  &  Gas  Company  and 
John  T.  McGraw  not  to  go  on  the  premises,  and  warning  them  that, 
if  they  should  produce  oil  or  gas  on  the  land,  Kennedy  would  claim 
for  the  same.  Notwithstanding  this  notice,  the  McGraw  Company 
entered  and  drilled  a  well  producing  gas.    *    *    * 

It  cannot  be  said  that  the  first  lease  is  forfeited  by  any  express 
forfeiture  clause  found  in  it.     The  theory  of  the  McGraw  Company 

"  Parts  of  the  opinion  are  omitted. 


COVENANTS    AND    CONDITIONS.  7O9 

is  that  such  a  lease  confers  no  vested  estate  in  oil  or  gas  in  the  earth, 
but  at  most  confers  only  a  right  to  search  for  oil  and  gas,  and  that 
only  when  oil  or  gas  shall  be  found  in  paying  quantity  and  marketed 
does  any  estate  vest  in  the  lessee,  and  that  no  estate  ever  vested  under 
the  first  lease,  because  the  gas  found  was  not  in  paying  quantity.  This 
lease  does  not  limit  its  term  by  requiring  that  oil  or  gas  shall  be  found 
in  paying  quantity,  as  leases  usually  do.  It  says  that  the  lease  shall 
endure  '"five  years  from  this  date  and  as  long  thereafter  as  oil  and 
gas,  or  either  of  them,  is  produced  therefrom  by  the  party  of  the  sec- 
ond part."  So  this  lease  contains  nothing  in  terms  allowing  the 
lessor  to  end  it  because  oil  or  gas  is  not  found  in  paying  quantity; 
and,  if  there  were  such  provision,  I  should  regard  it  as  made  in  the 
interest  of  the  lessee  to  protect  him  from  payment  of  the  annual  sum 
for  a  gas  well,  if  insufficient  in  quantity,  and  not  as  intended  to  give 
the  lessor  right  to  terminate  the  lease  against  the  lessee's  will,  he 
treating  the  quantity  as  sufficient  and  electing  to  pay.  What  right  has 
Evans  to  say  that  no  estate  vested  by  reason  of  insufficiency  of  gas, 
when  the  lease  makes  no  such  provision,  and  the  lessee  chooses  to  re- 
gard it  as  sufficient  and  pay  as  if  it  were  ?  And  again  it  has  been  held, 
even  when  such  a  clause  is  in  the  lease,  that  it  is  with  the  lessee  to  say 
whether  the  product  is  in  paying  quantity.  Urpman  v.  Lowther  Oil 
Co.,  53  W.  Va.  501,  44  S.  E.  433,  97  Am.  St.  Rep.  1027;  Thornton 
Petroleum  &  Gas,  §  1 10.  So  held  in  Summerville  v.  Apollo  Gas  Co., 
207  Pa.  334,  56  Atl.  876,  and  by  Judge  Goflf  in  Kellar  v.  Craig,  126 
Eed.  630,  61  C.  C.  A.  366 ;  Young  v.  Oil  Co.,  194  Pa.  243,  45  Atl.  121. 
is  notable  for  this  construction  of  such  a  clause.  It  says  that  the 
operator  has  election  to  say  whether  it  will  pay.  It  is  useless  to 
argue  that  a  lease  does  not  vest  right  to  oil  and  gas  in  place, 
and  therefore  no  right  vests  of  any  character,  if  the  quan- 
tity is  too  small  to  pay.  Xo  one  says  that  the  lease  carries  title 
to  these  minerals,  even  after  a  paying  well  has  revealed  them  ;  but 
an  estate,  a  right  of  value  then  vests,  that  is,  right  to  retain  posses- 
sion of  the  land  for  operation  and  to  go  on  to  sever  the  minerals 
from  the  land  and  convert  them  into  personalty.  When  this  well 
was  found,  the  lessee  had  right,  if  he  chose,  to  keep  possession  and 
pay  the  annual  rental.  He  had  a  vested  right.  Evans  was  only 
entitled  to  the  rental.  Title  vested.  He  gets  the  same  pay  as  if  the 
well  produced  a  larger  Quantity.  There  is  really  no  evidence  that 
it  was  not  a  paying  well.  The  cross-bill  alleges  that  it  was,  and 
this  is  to  be  taken  as  true  on  demurrer.  Evans  for  seven  years  so 
treated  it,  for  he  received  seven  annuals  of  $200.  knowing  that  the 
gas  v.-as  not  being  marketed,  knowing  the  status  of  the  well.  Though 
the  gas  was  not  marketed,  the  well  was  being  used  to  comply  with 
the  lessee's  covenant  to  furnish  Evans  gas  for  his  use.  The 
law  is  that  "the  right  to  declare  a  forfeiture  must  be  distinctly  re- 
served, proof  of  the  happening  of  the  event  on  which  the  right  is  to 
be  exercised  must  be  clear,  and  the  party  entitled  to  do  so  must  exer- 


jlO  OIL,    GAS    AND   OTHER    MINING   LEASES. 

cise  his  right  promptly."  Thompson  v.  Christie,  138  Pa.  230,  20  Atl. 
934,  II  L.  R.  A.  236.  Will  equity  allow  Evans  to  wait  and  wait, 
drawing  large  sums  of  money  yearly,  and  then  at  the  eleventh  hour 
suddenly  forfeit  ?  Is  he  not  estopped  ?  Such  acceptance  of  money 
by  Evans,  knowing  all  the  facts,  is  forcible  against  him  as  an  estoppel 
in  a  court  of  equity.  Hukill  v.  Myers,  36  W.  Va.  639,  15  S.  E. 
151.  *  *  *  Moreover,  there  is  evidence  going  to  show  that  the  gas 
was,  in  fact,  in  paying  quantity. 

Title  having  vested,  the  lease  contains  no  clause  that  forfeits  it. 
It  is  argued  not  definitely,  but  virtually,  that  failure  to  drill  other 
wells  forfeits.  We  have  frequently  held  that,  where  there  is  no 
express  provision  requiring  additional  wells,  but  only  an  implied  one, 
this  will  not  forfeit.  Core  v.  Petroleum  Co.,  52  W.  Va.  276,  43  S.  E. 
128;  Kellar  v.  Craig,  126  Fed.  630,  61  C.  C.  A.  366.  I  have  never 
been  reconciled  to  the  doctrine  that  for  failure  to  drill  additional 
wells  the  lessor  must  sue  at  law  for  damages,  and  equity  will  not  can- 
cel unless  for  draining  from  nearby  territory,  and  thus  exhaust  oil  in 
the  leasehold  involved.  I  have  asked  :  How  many  actions  must  the 
landlord  bring  ?  How  can  damages  be  measured  ?  How  can  we  see 
into  the  depth  of  the  earth  ?  But  it  has  been  so  held.  The  reason  is 
that  equity  will  not,  as  a  rule,  enforce  a  forfeiture  of  an  estate. 
It  will  not  especially  insert  such  a  clause  when  the  parties  have  not 
inserted  it,  especially  when  they  did  insert  forfeiture  for  failure  to 
drill  or  pay  commutation,  but  did  not  insert  forfeiture  for  failure  to 
drill  additional  wells.  As  to  duty  to  drill  additional  wells  for  gas, 
the  Pennsylvania  Supreme  Court  has  held,  practically,  that  it  does 
not  exist  in  gas  as  in  case  of  oil,  because  of  the  difference.  A  small 
oil  well  can  be  used  ;  a  gas  well  of  slight  pressure  will  not  enter  a 
gas  line.  McKnight  v.  Manufacturers'  Gas  Co.,  146  Pa.  185,  23  Atl. 
164,  28  Am.  St.  Rep.  790.  That  was  for  both  oil  and  gas,  but  devel- 
opment seemed  to  show  the  section  to  be  gas  territory,  as  in  this 
case ;  but  we  express  no  opinion  as  to  this.  We  only  say  there  can 
be  no  forfeiture  for  mere  failure  to  drill  more  wells. 

It  is  argued  that  failure  to  market  the  gas  forfeits  the  lease.  So 
it  was  claimed  in  Summerville  v.  Apollo  Gas  Co.,  207  Pa.  334,  56 
Atl.  876,  as  to  a  lease  for  two  years  "and  as  much  longer  as  oil  and 
gas  are  found  in  paying  quantities,"  and  the  court  said  that  the  lessor 
had  no  right  to  forfeit  at  the  end  of  two  years  because  during  that 
time  no  oil  or  gas  had  been  marketed.  "It  may  be  that  for  some  time 
the  lessee  was  not  able  to  find  a  purchaser  for  the  gas,  but  that  was 
not  the  affair  of  the  lessors.  They  were  not  interested  in  the  pro- 
ceeds of  the  sale  of  the  gas.  Their  rights  imder  the  agreement  ex- 
tended only  to  the  receipt  of  a  stipulated  annual  rental  for  each  well, 
and  the  free  use  of  gas  for  domestic  purposes.  Beyond  this  the  ques- 
tion of  whether  or  not  the  quantity  of  gas  was  profitable  was  for  the 
decision  of  the  lessee.  It  may  be  that  the  final  disposition  of  the  prod- 
uct of  the  well  was  such  as  to  amply  remunerate  it  for  the  delay  in 


OTHER    MINING   LEASES.  7II 

finding  a  market."     There  is  no  evidence  that  the  well  was  not  in 
paying  volume.    *    *    * 

Therefore  we  reverse  the  decree,  and  dismiss  the  bill  filed  by  the 
McGraw^  Company,  and  we  decree  that  the  lease  in  the  record  speci- 
fied dated  the  20th  day  of  March,  1907,  from  Hugh  Evans  and  wife 
to  the  McGraw  Oil  &  Gas  Company,  be  canceled,  annulled,  and  set 
aside  as  to  the  rights  of  the  Crystal  Ice  Company,  Robert  M.  Ken- 
nedy, the  South  i'enn  Oil  Company,  and  all  other  parties  having 
rights  derived  under  and  by  virtue  of  the  lease  in  the  record  speci- 
fied, dated  the  20th  day  of  September,  1899,  made  by  Hugh  Evans 
and  wife  to  U.  S.  Ditman  and  J.  C.  Gawthrop ;  and  this  cause  is  re- 
manded to  the  circuit  court  of  Taylor  county  for  further  proceedings. 


Section  3. — Other  Mining  Leases. 

PLUMMER  V.  HILLSIDE  COAL  &  IRON  CO.  et  al. 

1894.     Supreme  Court  of  Pennsylvania. 
160  Pa.  St.  483.  28  Atl.  853. 

Trespass  q.  c.  by  Emma  A.  Plummer  against  the  Hillside  Coal 
&  Iron  Company  and  the  Lackawanna  Coal  Company.  Limited. 
Judgment  for  defendants.     Plaintifif  appeals.    Afiirmed. 

Williams,  J. — The  learned  counsel  for  the  appellant  states  the 
point  in  controversy  very  fairly  and  clearly  in  the  opening  sentence 
of  his  printed  argument.  He  says,  "The  contention  in  this  case  is 
confined  to  the  efifect  and  subsequent  history  of  the  Calendar  lease 
dated  the  ist  of  October,  1828."  His  position  is  that  the  lease  grant- 
ed only  an  incorporeal  right  to  the  lessee,  to  be  exercised  upon  the 
premises  covered  by  the  lease.  The  appellees,  on  the  other  hand, 
contend  that  it  granted  the  coal  in  place,  under  the  land,  absolutely. 
The  words  of  the  instrument  upon  which  this  question  depends  may 
be  put  together  thus  :  "Samuel  Calendar  '•■  *  *  doth  lease  and 
to  farm  let  to  Thomas  Merideth  *  -^  "■'  all  tlie  hnd  that  he  now 
holds,  *  *  ^=  and  the  lease  is  to  continue  for  the  term  of  one 
hundred  years  from  this  day.  Possession  of  the  leased  premises  shall 
extend  only  to  their  use  as  a  coal  field.  The  lessee  shall  have  full 
power  and  possession  to  search  for  coal  anywhere  on  the  leased 
premises,  in  any  manner  he  may  think  proper,  to  raise  the  coal,  when 
found,  from  the  beds ;  to  enter  and  carry  away  coal ;  and  to  sell  the 
same  for  his  own  benefit  and  profit.  He  may  occupy  whatever  land 
may  be  useful  or  necessary  as  coal  yards,  *  *  *  for  roads  for 
transporting  the  coal ;  and  in  case  it  may  prove  necessary  for  secur- 
ing the  full  enjoyment  of  the  premises  aforesaid  as  a  coal  field,  as 


712  OIL,    GAS    AND    OTHER    MINING    LEASES. 

aforesaid,  then  the  said  Samuel  covenants  and  agrees  to  execute  such 
further  writings  as  counsel  learned  in  the  law  may  deem  proper." 
The  purchase  money  or  price  of  the  coal  is  fixed  at  $200.  If  the 
coal  proved  abundant,  and  of  a  given  thickness,  then  another  $100 
was  to  be  paid.  In  addition  to  this  the  sum  of  $1  per  annum  was  to 
be  paid,  as  rent.  The  lessor  reserved  out  of  this  grant  the  right,  for 
himself  and  his  heirs,  to  take  coal  for  their  own  use,  so  long  as  they 
should  reside  on  the  land.  This  instrument  contemplated  a  sale  of 
the  coal  under  the  leased  premises  at  a  fixed  price,  to  be  increased 
$100  if  the  quantity  of  coal  reached  the  proportions  described  in  it. 
The  right  of  removal  was  to  be  exercised  within  100  years.  The  fact 
that  the  instrument  is  in  the  form  of  a  lease  is  not  material,  when  the 
character  of  the  transaction  is  apparent.  Kingsley  v.  Iron  Co.,  144 
Pa.  St.  613,  23  Atl.  250;  Montooth  v.  Gamble,  123  Pa.  St.  240,  16 
Atl.  594.  A  written  contract,  though  not  under  seal,  granting  the 
privilege  of  digging  all  the  coal  or  ore  on  the  vendor's  land,  is  equiv- 
alent to  a  conveyance  of  the  title  to  the  coal  or  ore  in  fee.  Fairchild 
V.  Furnace  Co.,  128  Pa.  St.  485,  18  Atl.  443,  444.  Such  a  conveyance 
operates  to  sever  the  surface  from  the  underlying  stratum  of  coal ; 
and  after  such  severance  the  continual  occupancy  of  the  surface  by 
the  vendor  is  not  hostile  to  the  title  of  the  owner  of  the  underlying 
estate,  and  will  not  give  title  under  the  statute  of  limitations.  To 
affect  the  title  of  the  owner  of  the  coal,  there  must  be  an  entry  upon 
his  estate,  and  an  adverse  possession  of  it.  Armstrong  v.  Caldwell, 
53  Pa.  St.  284.  But  the  contention  that  a  right  to  mine  coal  in  the 
land  of  another  is  an  incorporeal  one  cannot  be  successfully  main- 
tained. The  grant  of  such  a  right  is  a  grant  of  an  interest  in  land. 
Hope's  Appeal  (Pa.  Sup.)  3  Atl.  23.  When  the  grant  is,  in  terms  or 
in  eftect,  a  grant  of  all  the  coal  on  the  lessor's  land,  this  amounts  to 
a  severance  of  the  coal  from  the  surface,  and  vests  a  title  to  the  un- 
derlying stratum  in  the  grantee.  Sanderson  v.  City  of  Scranton,  105 
Pa.  .St.  4(39.  This  underlying  estate  may  be  conveyed  under  the 
same  general  rules,  as  to  notice,  as  to  recording,  and  as  to  actual  pos- 
session, as  the  surface.  After  such  a  severance  the  possession  of  the 
holder  of  each  estate  is  referable  to  his  title.  The  owner  of  the  sur- 
face can  no  more  extend  the  efifect  of  his  possession  of  his  own  estate 
downward  than  the  owner  of  the  coal  stratum  can  extend  his  posses- 
sion upward,  so  as  to  give  him  title  to  the  surface,  under  the  statute 
of  limitations.  The  owner  of  the  surface  can  be  afifected  only  by  the 
invasion  of  the  surface.  The  owner  of  the  underlying  stratum  is  not 
bound  to  take  notice  of  the  invasion  of  the  estates  that  do  not  belong 
to  him,  but  when  his  own  estate  is  invaded  he  is  bound  to  take  notice. 
The  conclusion  thus  reached  disposes  of  the  title  by  possession  set 
up  by  the  plaintiff,  and  of  her  right  to  recover  in  this  case. 

The  appellant  cites  Oil  Co.  v.  Fretts,  152  Pa.  St.  451,  25  Atl.  732; 
Menish  v.  Stone,  152  Pa.  St.  457,  note,  25  Atl.  732, — and  other  cases 
in  which  oil  leases  were  considered,  and  the  rights  of  the  lessors  and 


OTHER  MINING  LEASES.  71 3 

lessees  defined,  A  lease  granting  to  the  lessee  the  right  to  explore 
for  oil,  and,  in  case  oil  is  found  in  paying  quantities  on  the  leased 
premises,  to  drill  wells  and  raise  the  oil,  paying  an  agreed  royalty 
therefor,  has  been  held  to  convey  no  interest  in  the  land,  beyond  the 
right  to  enter  and  explore,  unless  the  search  for  oil  proves  successful. 
If  it  proves  unsuccessful,  and  the  lessee  abandons  its  future  prosecu- 
tion, his  rights  under  the  lease  are  gone.  So  it  might  be  with  a  simi- 
lar lease  of  lands  supposed  to  contain  coal.  If  the  lessee  entered, 
explored  the  leased  premises,  and,  finding  nothing,  gave  up  the 
search,  he  would  no  doubt  be  held  to  the  same  rules,  upon  the  same 
provisions  in  the  lease,  as  were  applied  in  the  cases  cited.  The  dif- 
ference in  the  nature  of  the  two  minerals,  and  the  manner  of  their 
production,  have,  however,  resulted  in  considerable  differences  in  the 
forms  of  the  contracts  of  leases  made  use  of.  When  oil  is  discovered 
in  any  given  region,  the  development  of  the  region  becomes  immedi- 
ately necessary.  The  fugitive  character  of  oil  and  gas,  and  the  fact 
that'  a  single  well  may  drain  a  considerable  territory,  and  bring  to  the 
surface  oil  that  when  in  place,  in  the  sand  rock,  was  under  the  lands 
of  adjoining  owners,  makes  it  important  for  each  landowner  to  test 
his  own  land  as  speedily  as  possible.  Such  leases  generally  require, 
for  this  reason,  that  operations  should  begin  within  a  fixed  number 
of  days  or  months,  and  be  prosecuted  to  a  successful  end,  or  to  aban- 
donment. Coal,  on  the  other  hand,  is  fixed  in  location.  The  owner 
may  mine  when  he  pleases,  regardless  of  operations  around  him.  Its 
amount  and  probable  value  can  be  calculated  with  a  fair  degree  of 
business  certainty.  There  is  no  necessity  for  haste,  nor  moving  pari 
passu  with  adjoining  owners.  The  consequence  is  that  coal  leases 
are  for  a  certain  fixed  term,  or  for  all  the  coal  upon  the  land  leased, 
as  the  case  may  be.  The  rule  of  Oil  Co.  v.  Fretts,  supra,  is  not  capa- 
ble of  application  to  the  lease  made  by  Calendar  to  Merideth  in  1828, 
for  several  reasons :  First.  The  Calendar  lease  is,  in  effect,  a  sale  of 
all  the  coal  in  the  leased  premises,  and  consequently  a  severance  of 
the  surface  therefrom.  Second.  It  is  for  100  years.  All  idea  of 
haste  in  development  or  operating  is  excluded  by  the  terms  of  the 
instrument,  and  the  time  for  commencing  the  work  of  mining  is  left 
to  the  discretion  of  the  lessee.  Third.  The  consideration  of  the 
grant  was,  not  the  development  of  the  mineral  value  of  the  land,  but 
the  price  fixed  by  the  agreement,  and  actually  paid  to  the  lessor  in 
money.  Upon  a  careful  examination  of  the  several  assignments  of 
error,  we  are  all  of  opinion  that  the  judgment  must  be  affirmed. 
Judgment  will  be  entered  accordingly. 


714  OIL,    GAS    AND   OTHER    MINING    LEASES. 

TENNESSEE  OIL,  GAS  &  MINERAL  CO  v.  BRO>VN  et  al. 

1904.     Circuit  Court  of  Appeals,  Sixth  Circuit. 
65  C.  C.  A.  524,  131  Fed.  696. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  East- 
ern District  of  Tennessee. 

This  is  a  bill  to  remove  a  cloud  from  the  title  to  a  tract  of  mineral  land 
situated  in  Scott  county,  Tenn.  The  land  in  question  is  wild  mountain  land, 
situated  in  the  Cumberland  Mountains,  and  has  little  or  no  value,  save  for  its 
timber  and  minerals.  The  plaintiffs  are  in  possession  and  claim  title  in  fee 
through  conveyance  made  by  one  Richard  Slaven,  under  whom  the  defendants 
also  claim  the  mineral  interest  in  said  lands.  The  alleged  cloud  consists  in  a 
prior  conveyance  or  agreement  of  lease  or  license  made  by  said  Richard  Slaven 
to  one  Geo.  W.  Colbert  under  whom  defendants  claim  the  mineral  and  timber 
interests  in  said  land.     This  instrument  is  in  these  words  : 

"The  said  party  of  the  iirst  part,  for  the  consideration  of  one  dollar,  to  him 
in  hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  as  well  as  the 
agreements  hereinafter  mentioned  does  hereby  bargain,  sell,  and  convey  unto 
the  party  of  the  second  part,  his  heirs  and  assigns,  all  the  mineral,  coal,  iron 
ore,  ore  and  potter's  clay,  and  other  minerals,  and  all  rock  or  petroleum  oil 
and  salines,  and  all  timber  suitable  for  lumber,  in,  upon,  or  under  the  farm  or 
tract  of  land  in  the  district  of  No.  1st,  in  the  county  of  Scott,  in  the  said 
state  of  Tennessee,  bounded  and  described  as  follows ;  *  *  *  Granting  to 
the  party  of  the  second  part,  or  his  assigns,  the  exclusive  right  to  enter  upon 
said  lands  at  any  time  hereafter,  and  search  for  coal,  iron  ore,  and  all  other 
minerals,  oils,  and  salines,  and,  when  found,  to  remove  the  same  from  said 
lands,  together  with  all  rights  and  privileges  incident  to  the  mining  and  secur- 
ing said  coal,  iron  ore,  clay,  and  other  minerals,  oils,  and  salines,  including 
the  right  of  ingress  and  egress.  And  the  party  of  the  second  part  agrees  to 
enter  upon  and  make  search  for  coal  and  other  minerals  in  said  lands  above 
described;  and  should  he  find  coal,  iron  ore,  or  other  minerals,  or  oils,  or 
salines,  in  said  lands  and  adjoining  lands,  of  sufficient  thickness,  quantity, 
and  quality  to  justify  him,  the  party  of  the  second  part,  to  open  and  work  said 
mines,  or  oils,  or  salines,  then  he,  or  his  representatives  or  assigns,  shall  pay 
to  the  party  of  the  first  part,  his  heirs  or  assigns,  within  five  years  after  the 
completion  of  a  railroad,  built  in  connection  with  any  leading  railroad  by 
which  said  minerals  or  oil  can  be  taken  to  any  large  markets,  the  sum  of  ten 
(10)  dollars  a  year,  until  mining  is  commenced  upon  said  premises,  or  during 
the  continuance  of  this  agreement ;  and  the  failure  to  make  these  advance  pay- 
ments yearly  upon  request,  shall  be  deemed  an  abandonment  of  this  agree- 
ment, but  not  to  the  injury  of  the  party  of  the  second  part,  or  his  assigns. 
And  the  party  of  the  second  part  shall  have  the  right  to  abandon  said  lands 
and  mining  at  any  time  and  remove  all  his  buildings  and  fixtures  from  said 
lands.  And  the  said  party  of  the  second  part,  by  himself  or  assigns,  agrees  to 
pay  to  the  party  of  the  first  part,  his  legal  representatives  or  assigns,  the  sum 
of  ten  (10)  cents  for  each  ton  (2,240  pounds)  of  screened  coal,  iron  ore, 
or  other  minerals  mined  and  removed  from  said  lands  herein  described;  and 
the  price  shall  be  ten  (10)  cents  per  1,000  feet  of  sawed  lumber;  and 
the  price  or  rent  for  rock  or  petroleum  oil  and  salines  shall  be  one-twentieth 
of  the  net  proceeds.  But  it  is  understood  and  agreed  that  any  advance  pay- 
ments of  ten  (10)  dollars  as  before  mentioned  to  be  paid  yearly,  that  shall 
be  made  to  the  party  of  the  first  part,  are  to  apply  on  the  payment  of  rent 
of  coal,  iron  ore,  or  other  minerals  or  oil  first  mined  thereafter.  The  pay- 
ment of  rent  per  ton  on  coal,  iron  ore,  other  minerals,  clays,  oils,  and  sa- 


OTHER    MINING   LEASES.  7^5 

lines,  mined  and  removed,  shall  be  made  half-yearly,  and  all  payments  re- 
quired by  this  agreement  shall  be  made  and  accepted  in  bankable  funds  of 
the  state  of  Tennessee.  It  is  mutually  understood  by  the  parties  that  the  coal, 
clay,  and  ore  under  any  dwelling  house  or  other  permanent  buildings  upon 
the  premises  shall  not  be  mined  out,  and  as  little  injury  to  the  surface  of 
said  land  shall  be  done  as  possible,  in  the  mining,  removal,  and  transporta- 
tion of  said  coal,  clay,  and  ore,  as  herein  contemplated.  It  is  also  mutually 
understood  that  the  stipulations  herein  contained  shall  apply  to  and  bind  the 
heirs,  executors,  administrators,  and  assigns  of  the  parties,  respectively.  In 
witness  whereof,  the  parties  hereunto  set  their  hands  and  seals  the  day  and 
year  first  above  written." 

Upon  the  pleadings  and  evidence,  the  prayer  of  the  bill  was  granted,  and 
a  cancellation  of  the   instrument   above   set  out   decreed. 

Before  Lurton,  Severens,  and  Richards,  Circuit  Judges. 

LuRTON,  Circuit  Judge,  after  making  the  foregoing  statement  of 
the  case,  dehvered  the  opinion  of  the  court. 

The  contention  of  the  appellant  company  is  that  the  agreement  be- 
tween Richard  Slaven  and  Geo.  W.  Colbert,  set  out  in  the  state- 
ment of  the  case,  is  a  deed  of  conveyance  of  the  minerals  in  the  land 
and  of  the  timber  thereon,  which  operated  to  vest  a  fee  in  the  min- 
erals and  timber,  subject  to  defeasance  only  upon  breach  of  the 
agreement  to  pay  $io,  upon  request,  annually,  after  the  completion 
of  the  railroad  referred  to.  This  construction  is  based  upon  the  in- 
sistence that  the  terms  "bargain,  sell,  and  convey,"  found  in  the  first 
clause  of  the  instrument,  necessarily  characterize  it  as  a  conveyance 
of  the  timber  upon  and  the  minerals  under  the  surface  of  the  land 
of  Slaven.  Prima  facie  this  may  be  true.  But  before  we  give  these 
words  this  construction  we  must  look  into  the  four  corners  of  the 
agreement  and  give  effect  to  the  whole  of  the  contract.  The  Cin- 
cinnati Southern  Railroad  was  in  prospect  when  this  contract  was 
made,  and  was  constructed  to  a  point  within  nine  iniles  of  this  prop- 
erty within  five  years  after  this  contract.  But  no  railroad  has  been 
built  connecting  that  railway  with  this  property,  and  appellants  say 
that  they  are  not  under  covenant,  implied  or  express,  to  construct 
such  connecting  road.  Without  such  road  they  say  the  coal  uiider 
this  land  cannot  be  profitably  mined  or  the  timber  converted  into 
lumber,  and  that,  having  the  title  to  the  coal  and  timber,  and  the 
title  to  any  other  minerals  which  may  yet  be  found,  they  are  under 
no  obligation  to  mine  the  coal  or  other  minerals,  or  cut  down  the 
timber, ^until  it  can  be  done  to  their  advantage,  and  that  they  may 
hold  this  estate  until  such  time  as  it  suits  them  to  remove  the  miner- 
als or  oil  or  timber,  and  that  neither  Slaven  nor  his  subsequent  les- 
sees can  complain  because  the  instrument  contains  no  agreement, 
express  or  implied,  obligating  them  to  begin  or  continue  mining,  if 
they  should  choose  to  begin.'  Though  they  have  done  nothing,  and 
paid  only  the  nominal  consideration  of  $i  under  this  deed,  they  jus- 
tify this  nonaction  for  25  years  by  the  insistence  that  one  may  do  as 
he  will  with  his  own,  in  the  absence  of  a  contract  to  do  a  particular 
thing,  and  that,  not  having  agreed  to  mine  the  minerals  upon  said 


7l6  OIL,    GAS    AND   OTHER    MINING    LEASES. 

land,  they  are  within  their  right  in  biding  their  time,  and  that,  if  they 
shall  deem  it  advantageous  to  ever  commence  mining,  they  are  un- 
der no  covenant,  implied  or  express,  to  mine  any  definite  quantity, 
or  continually,  or  until  the  mineral  is  exhausted,  but  may,  if  they 
see  fit,  "abandon  said  lands  and  mining  at  any  time,  and  remove  all 
buildings  and  fixtures,"  having  reserved  the  right  to  terminate  the 
estate  vested  at  will. 

The  logic  of  the  situation  compels  the  learned  solicitor  for  the  ap- 
pellants to  take  up  this  extreme  ground,  for  otherwise  their  utter 
failure  to  do  any  valuable  thing  in  pursuance  of  the  agreement  after 
the  lapse  of  25  years  would  be  unaccountable.  If  in  all  the  time  past 
they  have  had  the  right  to  stand  upon  their  claim  to  be  the  owners 
absolutely  of  the  mineral  interests  thus  severed,  in  law,  from  the 
land,  and  to  refuse  to  develop  and  operate  that  interest,  because  that 
is  the  right  of  an  owner  of  the  fee,  the  same  right  to  hold  onto  this 
estate  for  the  next  century  is  undeniable.  That  they  may  be  required 
to  pay  $10  annually  if  a  railroad  shall  ever  be  constructed  from  the 
Cincinnati  Southern  to 'this  land  they  concede.  But  this  concession 
is  possibly  inadvertent ;  for,  although  one  clause  of  the  agreement 
does  provide  for  such  a  payment  until  mining  commences,  and  that 
the  failure  to  make  these  advance  payments  yearly  upon  request  shall 
be  deemed  an  abandonment  of  this  agreement,  it  is  added,  "but  not 
to  the  injury  of  the  party  of  the  second  part  or  his  assigns."  If  it 
is  true  that  the  appellants  have  for  $1  acquired  the  right  to  prevent 
Slaven  or  his  assigns  from  using,  exploiting,  or  mining  the  mineral 
interests  upon  or  under  his  own  land,  and  can  at  no  time  be  required 
to  convert  the  timber  into  lumber,  or  to  open  and  operate  the  very 
valuable  vein  of  coal  now  known  to  underlie  its  surface,  to  say 
nothing  of  the  possibilities  of  iron  ore,  coal  oil,  and  other  minerals, 
the  contract  is  one  of  the  most  unreasonable  and  one-sided  which 
any  court  has  ever  been  called  upon  to  uphold.  But  this  $1  was  not 
the  real  consideration  moving  to  Slaven,  for  the  recital  of  the  con- 
tract is  that  the  consideration  is  one  dollar  in  hand  paid,  "as  well  as 
the  agreements  hereinafter  mentioned."  Now,  what  are  these  agree- 
ments referred  to?  for  before  we  may  conclude  that  this  is  an  out 
and  out  conveyance  in  praesenti  of  the  timber  and  mineral  interests 
owned  by  Slaven,  we  must  scrutinize  the  agreements  which  consti- 
tute the  real  consideration,  for  in  the  "agreements"  we  are  most 
likely  to  find  the  purpose,  intent,  and  meaning  of  the  instrument  re- 
garded as  a  whole. 

First.  We  find  that  Colbert  agrees  "to  enter  upon  said  land  and 
make  search  for  coal  and  other  minerals."  Why  shall  he  agree  to 
do  this,  if  already  he  is  the  fee-simple  owner  of  the  minerals  that 
may  be  hidden  there?  Second.  If  he  finds  such  minerals,  what  then? 
The  agreement  provides  that,  if  they  are  found  in  such  quantity  and 
quality  as  to  "justify  him,  *  *  *  to  open  and  work  same,  *  *  * 
then"  he  shall  pay  $10  per  annum,  after  the  completion  of  the  rail- 


OTHER  MINING  LEASES.  717 

road  mentioned,  and  upon  request,  "until  mining-  is  commenced,  or 
during-  the  continuance  of  this  agreement."  But  how  long  is  this 
"agreement"  to  continue?  There  is  no  stipulation  that  he  shall  ever 
commence  to  mine,  or,  if  he  does,  that  he  shall  continue  for  one  day, 
one  year,  or  until  the  minerals  developed  by  the  "search"  he  agreed 
to  make  shall  be  exhausted.  Upon  the  contrary,  it  is  expressly  pro- 
vided that  "he  shall  have  the  right  to  abandon  said  lands  and  mining 
at  any  time,  and  remove  all  his  buildings  from  said  lands."  If  we 
should  concede  that  the  technical  effect  of  the  words  of  bargain,  sale, 
and  conveyance  found  in  the  document  was  to  vest  in  Colbert  title 
to  the  mineral  and  timber  interests  referred  to,  without  regard  to  the 
requirement  that  he  should  "enter  upon  and  search  for  minerals" 
and  should  pay  the  stipulated  rent  of  $io  only  when  his  search  shall 
satisfy  him  that  the  interests  referred  to  existed  in  quantity  and 
quality  sufficient  to  "justify  him  *  *  *  to  open  and  work  them," 
we  could  not  reconcile  the  claim  that  this  was  a  deed  of  conveyance 
passing  the  title,  with  this  clause  giving  to  him  the  right  to  abandon 
a  fee  in  this  "nether  estate"  at  his  will. 

The  divestiture  of  a  vested  legal  title  by  "abandonment"  is  un- 
known at  the  common  law,  unless  it  result  from  some  estoppel  or 
adverse  possession  under  a  statute  of  limitations,  i  Cyc.  Law,  6; 
East  Tenn.  Iron  &  Coal  Co.  v.  Wiggin,  68  Fed.  446,  15  C.  C.  A. 
510;  Calloway  v.  Sanford  (Tenn.  Ch.  App.)  35  S.  W.  778.  Mani- 
festly this  agreement  obligated  Colbert  "to  enter  upon  and  make 
search  for  coal  and  other  minerals."  In  the  absence  of  a  stipulation, 
he  was  bound  to  do  this  within  a  reasonable  time.  If  this  search 
developed  nothing,  the  agreement  was  at  an  end.  The  payment  of 
the  stipulated  sum  of  $io  per  annum  is  "to  apply  on  the  payment  of 
rent  of  coal,  iron  ore,  or  other  minerals  or  oil,  first  mined  there- 
after." Thus  the  parties  regarded  this  annual  payment  as  an  advance 
rent  payment,  to  continue  "until  mining  is  commenced,  *  *  * 
or  during  the  continuance  of  this  agreement."  This  payment  of  rent 
is  also  contingent  upon  another  matter,  and  that  is  the  construc- 
tion of  a  railroad.  The  payment  of  rent  is  to  be  made  on  request, 
''within  five  years  after  the  completion  of  a  railroad  in  connection 
with  any  leading  railroad  by  which  said  minerals  or  oils  can  be 
taken  to  any  large  market."  The  annual  payments  provided  for 
after  mining  should  begin  are  called  or  described  as  "rents,"  a  term 
characterizing  the  agreement  as  a  lease  or  license,  rather  than  as 
conveyance  of  the  mineral  interests. 

These  considerations  lead  us  to  the  conclusion  that  the  presence  of 
words  of  conveyance  are  not  sufficient  to  require  us  to  hold  that  the 
effect  of  the  instrument  was  to  vest  in  Colbert  the  title  to  the  timber 
or  mineral  interests  in  this  land.  The  ruling  intention,  as  ascertained 
from  all  parts  of  the  agreement,  should  be  given  effect.  It  is  diffi- 
cult to  believe  that  it  was  intended  that  title  should  pass  until  these 
minerals  had  been  removed  and  as  they  were  removed.    The  con- 


7l8  OIL,    GAS    AND   OTHER    MINING   LEASES. 

sideration  to  be  paid  could  not  be  ascertained  until  that  contingency 
arrived,  for  no  price  in  solido  is  mentioned.  Whether  any  mining 
should  ever  be  done  or  any  price  ever  paid  were  both  dependent 
upon  future  events.  The  contract  was,  therefore,  for  a  lease  de- 
pendent upon  conditions.  That  the  exploration  for  minerals  should 
be  made  within  a  reasonable  time  is  of  the  very  essence  of  the  agree- 
ment, and  a  condition  precedent  to  the  accruing  of  the  right  to  take 
the  minerals  discovered  upon  the  terms  of  payment  indicated.  The 
failure  to  make  such  exploration  within  a  reasonable  time,  and  to 
make  it  with  such  thoroughness  and  certainty  as  to  determine  the 
existence  of  mineral  or  oil,  would  be  fatal  to  the  continuance  of  the 
agreement.  Upon  this,  we  think,  this  lease  depended  as  a  condition 
precedent.  The  case  falls  within  the  principles  applied  by  this  court 
in  the  cases  of  Allegheny  Coal  Co.  v.  Snyder,  io6  Fed.  764,  45  C. 
C.  A.  604,  and  Logan  Gas  Co.  v.  Grt.  Southern  Gas  Co.  (C.  C.  A.) 
126  Fed  623,  and  by  the  Supreme  Court  of  Tennessee  in  Petroleum 
Co.  V.  Coal  &  Coke  Co.,  89  Tenn.  381,  18  S.  W.  65.  To  the  same 
effect  are  the  cases  of  Steelsmith  v.  Gartlan,  45  W.  Va.  27,  29  S.  E. 
978  44  L.  R.  A.  107;  Conrad  v.  Moorehead,  89  N.  C.  31  ;  Knight 
v  Coal  &  Iron  Co.,  47  Ind.  105,  17  Am.  Rep.  692 ;  Huggins  v.  Daley, 
99  Fed.  606,  40  C.  C.  A.  12,  48  L.  R.  A.  320. 

This  duty  of  exploring  for  minerals  meant  for  all  of  the  minerals 
named  which  might  reasonably  be  expected  to  be  found,  considering 
known  geological  conditions.  The  search  actually  made  was  not 
made  until  1888  or  later,  a  period  of  15  years  after  the  date  of  the 
agreement,  a  delay  beyond  all  reason.  When  made,  it  was  extremely 
superficial  and  valueless  from  any  reasonable  view.  Coal  exposed 
by  washes  on  side  of  the  mountain  was  observed,  but  the  depth  of 
the  vein,  the  surface  underlain,  and  character  of  the  coal  are  as  un- 
known t'oday  as  upon  the  day  of  the  lease.  No  effort  seems  to  have 
been  made  to  discover  iron  or  coal  oil.  This  kind  of  an  investigation 
was  delusive.  The  search  was  a  purely  nominal  one,  and  not  a 
faithful  effort  to  comply  with  the  agreement.  The  Supreme  Court 
of  Tennessee,  in  the  case  cited  above,  said  of  such  a  requirement  in 
a  mining  lease : 

'The  'testing'  should  be  so  thoroughly  done  as  to  determine,  not  only  the 
presence  of  such  minerals,  but  their  commercial  value,  considering  their 
abundance  and  accessibility.  The  information  resulting  should  be  such  as  a 
prudent  and  experienced  investor  would  desire  to  know  before  expending  his 
capital  in  the  digging  of  shafts  or  the  erection  of  machinery  proper  for  the 
profitable  working  of   such   a   mine." 

Slaven  was  never  notified  of  even  the  superficial  search  made,  nor 
that  the  lessee  proposed  to  hold  on  and  comply  with  the  terms  of  the 
lease.  No  rent  was  paid  or  demanded.  No  taxes  were  paid.  Not  $1 
was  ever  expended  in  endeavoring  to  make  the  lease  productive  to 
the  lessor.     In  this  situation  of  things  Slaven  clearly  expressed  his 


OTHER    MINING   LEASES.  719 

intention  to  avoid  the  agreement  by  making  a  new  lease  in  1890  to 
the  appellees.  Logan  Gas  Co.  v.  Grt.  Southern  Gas  Co.  (C.  C.  A.) 
126  Fed.  623,  626;  Guffy  v.  Hukill,  34  W.  Va.  49,  11  S.  E.  754,  8 
L.  R.  A.  759,  26  Am.  St.  901  ;  Huggins  v.  Daley,  99  Fed.  606,  40 
C.  C.  A.  12,  48  L.  R.  A.  320. 

But,  independently  of  any  other  ground,  the  general  provision  of 
this  lease,  authorizing  the  lessee  to  abandon  whenever  he  should  see 
fit,  makes  it  a  lease  at  the  will  of  the  lessee.  An  estate  terminable 
at  the  will  of  one  of  the  parties  is  determinable  at  the  will  of  either, 
though  it  purports  to  be  terminable  at  the  will  of  one  only,  i 
Washburn,  Real  Property,  371  (side  paging)  ;  Taylor's  Landlord  & 
Tenant,  §  14;  18  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  182. 

The  decree  of  the  court  below  is  accordingly  affirmed. ^^ 


WILMORE  COAL  CO.  v.  BROWN  et  al. 

1906.     Circuit  Court,  W.  D.  Pennsylvania.     147  Fed.  931. 

Archbald,  District  Judge. ^^ — This  is  a  bill  to  remove  an  alleged 
cloud  on  the  plaintiff's  title.  In  the  years  1878  and  1880,  the  de- 
fendant J.  Willcox  Brown,  a  resident  of  Baltimore,  Md.,  secured  a 
large  number  of  mining  leases,  aggregating  about  16,000  acres,  in 
diiTerent  tracts,  of  various  sizes,  in  Somerset  county,  Pa.,  as  well  as 
a  like  number  in  the  adjoining  counties  of  Indiana  and  Cambria, 
nineteen  of  which,  of  the  Somerset  lot,  covering  some  2,400  acres, 
are  involved  in  the  present  suit.  These  leases  were  indentures  under 
seal,  and  severally  undertook,  for  the  consideration,  in  some  cases 
of  $5  and  in  some  cases  of  $10,  to  grant,  bargain,  and  to  sell  to  the 
said  J.  Willcox  Brown,  his  heirs,  executors,  administrators,  and  as- 
signs, "all  the  iron  ore,  coal,  cement,  and  fire  clay,  and  all  other 
minerals  of  every  kind,"  under  the  different  tracts  described,  "in- 
cluding the  privilege  of  boring  any  number  of  wells  and  taking  there- 
from, by  such  means  as  are  or  may  be  most  practicable,  petroleum, 
carbon,  or  coal  oil,  also  any  salt  water  that  may  be  found  on  the 
premises  and  manufacturing  the  same  into  salt,"  together  with  the 
full  and  exclusive  right,  liberty,  and  privilege  of  mining,  taking,  and 
carrying  away  the  said  iron  ore  and  other  minerals,  and  of  using 
such  stones,  earth,  and  water  as  might  be  necessary  or  required  for 
conducting  the  mining  operations.  A  few  acres  were  reserved 
around  buildings,  and  enough  coal  for  the  grantor's  own  use,  and 
in  some  cases  such  as  he  might  sell  to  his  neighbors.  The  leases 
were  to  run  for  99  years;  the  grantors  covenanting  at  the  end  of 

"  The  opinion  of  the  court  below  is  omitted. 
"  Parts  of  the   opinion  are  omitted. 


720  OIL,    GAS    AND   OTHER    MINING   LEASES. 

that  time  to  execute  other  leases  of  Hke  tenor,  for  a  similar  term, 
renewable  forever.  In  consideration  whereof  it  was  agreed  by  the 
grantee  that  on  the  expiration  of  every  three  months,  whenever  any 
ore  or  other  minerals  were  mined,  quarried,  or  otherwise  reduced 
to  possession  and  removed  from  the  premises,  he  would  render  to 
the  grantor,  his  heirs,  executors,  and  assigns,  a  true  and  correct 
account  thereof,  paying  for  every  ton  of  iron  ore  ten  cents;  for 
every  ton  of  coal,  cement,  fire  clay,  or  other  minerals  than  iron,  five 
cents ;  and  for  every  hundred  barrels  of  petroleum  or  coal  oil,  and 
every  one  hundred  bushels  of  salt,  five  per  cent,  of  the  net  profits. 
The  leases  were  duly  acknowledged  and  put  on  record  in  the  office 
for  the  recording  of  deeds  in  Somerset  county,  Pa.,  in  July, 
1880.     *     *     * 

In  securing  the  leases  in  suit  and  others  in  that  region,  Mr.  Brown 
did  not  expect  to  do  any  mining  personally,  and  he  has  not,  either  by 
himself  or  others,  nor  has  he  paid  royalties,  at  any  time,  on  any  of 
them ;  his  purpose  being  to  sell  the  leases  to  others  or  to  transfer 
them  to  some  company  in  which  he  had  an  interest,  which  would 
operate  them.  He  sold  some  of  his  holdings  in  the  southern  part  of 
the  county  in  this  way,  and  he  made  several  attempts  to  interest 
parties  in  the  others,  including  the  New  York  Central  Railroad 
people,  the  Erie  people,  and  the  Baltimore  &  Ohio.  Learning  of  Air. 
Berwind's  purchases,  he  finally  offered  them  to  him,  but  without  suc- 
cess;  these  negotiations  ending  in  the  spring  of  1895,  after  which  no 
others  were  undertaken.  In  1892  certain  of  the  leases  were  assessed 
and  sold  for  taxes,  but  were  redeemed  by  Mr.  Brown,  who  paid  some 
$1,500  to  do  so.  They  were  sold  again  in  1896,  but  this  he  resisted, 
and  succeeded  in  having  the  sale  set  aside  by  the  court.  Learning  in 
1902  that  the  Berwind-White  Company  were  mining  on  certain  of 
the  lands  which  he  had  leased,  he  sent  an  engineer  to  investigate  the 
matter,  receiving  from  him  a  detailed  and  extended  report  which 
confirmed  the  information,  upon  which  he  took  counsel  with  the  idea 
of  legal  action.  Some  delay  was  experienced,  however,  with  regard 
to  this ;  the  one-quarter  interest,  which  he  had  assigned  to  the  agent 
who  secured  the  leases,  being  outstanding  in  the  hands  of  various 
parties.  But,  these  having  been  got  into  line,  a  corporation  was  or- 
ganized— the  New  Amsterdam  Coal  Company,  defendant — to  which 
all  interests  were  transferred  in  exchange  for  stock ;  and  in  1904 
actions  were  brought  by  that  company  against  the  Berwind-White 
Coal  Mining  Company  in  the  United  States  Circuit  Court  for  the 
Southern  District  of  New  York  for  damages  for  taking  the  coal 
from  six  of  the  different  tracts  in  controversy,  following"  which,  in 
May,  1904,  the  present  bill  was  filed.  These  are  the  general  facts. 
Others  will  be  referred  to  as  we  proceed.  The  question  is  whether, 
under  the  showing  made,  the  plaintiff  is  entitled  to  the  relief  desired. 

According  to  the  law  of  Pennsylvania,  by  which  the  subject  is 
necessarily  governed,  the  so-called  leases  to  the  defendant  Brown 


OTHER    MINING   LEASES.  721 

constitute  a  sale  and  conveyance  of  the  coal  and  minerals  in  place. 
This  is  the  effect  of  all  the  cases,  from  Caldwell  v.  Fulton,  31  Pa. 
475,  72  Am.  Dec.  760,  down,  and,  if  reiterated  declaration  is  to 
count  for  anything,  is  not  to  be  gainsaid  or  denied.  Sanderson  v. 
Scranton,  105  Pa.  469;  D.,  L.  &  W.  R.  R.  v.  Sanderson,  109  Pa.  583, 
I  Atl.  394,  58  Am.  Rep.  743;  Hope's  Appeal  (Pa.)  3  Atl.  23;  Mon- 
tooth  V.  Gamble,  123  Pa.  240,  16  Atl.  594;  Fairchild  v.  Dunbar  Fur- 
nace Co.,  128  Pa.  485,  18  Atl.  443,  444;  Kingsley  v.  Hillside  Coal 
&  Iron  Co.,  144  Pa.  613,  23  Atl.  250;  Lazarus'  Est.,  145  Pa.  i,  23 
Atl.  372;  Timlin  v.  Brown,  158  Pa.  606,  28  Atl.  236;  Plummer  v. 
Hillside  Iron  &  Coal  Co.,  160  Pa.  486,  28  Atl.  853 ;  Lehigh  &  Wilkes- 
Barre  Coal  Co.  v.  Wright,  177  Pa.  387,  35  Atl.  919.  "It  is  now  well 
established,"  says  Rice,  P.  J.,  in  Hosack  v.  Crill,  18  Pa.  Super._  Ct. 
90,  affirmed  204  Pa.  97,  53  Atl.  640,  "that  an  instrument  which  is  in 
terms  a  demise  of  all  the  coal  in,  under,  and  upon  a  tract  of  land, 
with  the  unqualified  right  to  mine  and  remove  the  same,  is  a  sale 
of  the  coal  in  place ;  and  this,  too,  whether  the  purchase  money 
stipulated  for  is  a  lump  sum  or  is  a  certain  price  for  each  ton  mined, 
and  is  called  'rent'  or  'royalty,'  and  also  notwithstanding  a  term  is 
created  within  which  the  coal  is  to  be  taken  out."'  It  is  true  that  in 
Denniston  v.  Haddock,  200  Pa.  426,  50  Atl.  197,  there  is  an  apparent 
attempt  to  hark  back  to  something  else ;  it  being  declared  to  be  in- 
accurate and  unfortunate  to  call  such  a  conveyance  a  sale,  because 
of  the  tendency  to  mislead  and  the  rules  with  respect  to  sales  being 
held  not  to  be  indiscriminately  applied.  This  is  also  approved  in 
Coolbaugh  v.  Lehigh  «S:  Wilkes-Barre  Coal  Co.,  213  Pa.  28,  62  Atl. 
94.  But,  whatever  may  be  the  modification  introduced  by  these  cases, 
the  general  doctrine  remains  that  a  grant  of  all  the  coal,  with  the 
right  to  remove  the  same,  however  denominated  and  by  whatever 
terms  conveyed,  severs  the  coal  from  the  surface  and  vests  in  the 
grantee  an  estate  therein,  with  all  that  is  incident  and  appurtenant 
thereto ;  and  that  in  effect  is  what  we  have  here.  By  indenture  under 
his  hand  and  seal,  duly  acknowledged  and  put  on  record,  the  grantor 
in  each  instance  grants,  bargains,  and  sells  to  the  defendant  J.  Will- 
cox  Brown,  his  heirs  and  assigns,  all  the  iron  ore,  coal,  cement,  fire 
clay,  and  other  minerals  of  every  kind,  with  the  full  and  exclusive 
right  of  mining  and  removing  the  same,  to  and  for  his  and  their 
only  proper  use  and  benefit.  This  brings  the  case  squarely  within 
those  which  have  been  cited,  and  conveys  a  fee.  It  is  true  that  a 
term  is  fixed  within  which  these  rights  are  to  be  exercised ;  but  that 
is  not  material,  and  another  is  provided  for,  renewable  forever,  if  it 
were.  True,  also,  it  is  stipulated  in  most  of  the  leases  that  a  railroad 
shall  be  built  within  five  years.  But  except  as  this  introduces  a  con- 
dition upon  which  the  estate  is  taken,  and  for  breach  of  which  it  is 
made  defeasible,  it  does  not  affect  the  character  of  the  conveyance 
or  the  interest  which  passed.  It  is  idle  to  argue,  from  this  or  any 
other  provision,  that  the  arrangement  is  unilateral,  the  defendant 

46 — Mining  Law 


722  OIL,    GAS    AND   OTHER    MINING    LEASES. 

merely  having  an  option,  ineffective  until  formally  accepted  by  entry 
or  other  affirmative  act.  Not  only  was  the  grant  out  and  out  and 
immediate,  but  there  was  a  reciprocal  undertaking  by  the  defendant 
to  account  and  pay  every  three  months  at  a  certain  royalty,  for  the 
coal  and  minerals  mined,  which  notwithstanding  there  was  no  mini- 
mum, imposed  a  direct  and  positive  obligation ;  a  covenant  to  mme 
with  reasonable  diligence  being  implied.  Equally  useless  is  it,  also, 
to  contend  that  the  provision  with  regard  to  the  building  of  a  rad- 
road  was  a  condition  precedent,  according  to  which,  until  complied 
with,  no  interest  was  acquired.  The  importance  of  a  railroad  may 
be  conceded,  no  development  of  the  region  being  possible  without 
it,  and  the  parties  who  stipulated  for  it  were  therefore  wise.  But 
whatever  the  necessity  for  it,  or  the  promise  with  regard  to  its  con- 
struction, there  is  nothing  in  either,  out  of  which  to  make  a  condi- 
tion precedent,  holding  up  the  grant  until  performed.  The  provision 
is,  not  that  the  leases"  shall  be  ineffective  until  the  railroad  is  built, 
but  that  they  shall  be  null  and  void  unless  built  within  a  certain 
time.  This  recognizes  that  the  estate  conveyed  is  to  vest  meanwhile, 
making  it  subject  to  be  divested  later,  in  case  of  a  failure  to  comply, 
creating  a  condition  subsequent,  upon  which  the  estate  is  taken  and 
held,  Rannels  v.  Rowe  (C.  C.  A.)  145  Fed.  296. 

As  a  condition  subsequent,  however,  the  promise  to  build  a  rail- 
road has  to  be  reckoned  with,  and  the  question  is  as  to  the  effect 
which  is  so  to  be  given  it.  Four  of  the  leases  are  untrammeled  by 
anything  of  the  kind — the  George  Fosler,  Samuel  Wible,  Gottlieb 
Bantlin!  and  Harrison  Lohr — the  alleged  verbal  promise  to  these 
parties  being  unsustained ;  and  as  to  them  the  subject  may  be  dis- 
missed. Those  which  remain  differ  somewhat  with  respect  to  the 
terms  of  the  condition  and  the  steps  subsequently  taken  to  enforce 
it,  requiring  a  separate  examination  as  to  each ;  but  to  a  certain  ex- 
tent they  fall  into  classes  by  which  the  matter  is  simplified.  In  four 
of  the  leases — the  David  J.  Shaffer,  David  Seese,  Israel  Seese,_and 
Samuel  Knavel — it  is  stipulated,  with  some  immaterial  variations, 
that  if  the  railroad  is  not  built  or  commenced  along  Paint  creek 
within  five  years  they  are  to  be  null  and  void.  This  is  distinct  and 
specific,  and  beyond  question  has  not  been  performed.  No  claim  is 
able  to  be  made,  as  is  done  with  regard  to  some,  that  the  building 
of  the  Baltimore  &  Ohio  branch  along  Stony  creek  in  1880,  within 
the  five  years,  was  a  fulfillment.  All  of  the  leases  named  are  located 
in  the  neighborhood  of  Windber,  four  or  five  miles  up  from  where 
Paint  creek  empties  into  Stony,  at  which  distance  a  railroad  along 
the  latter  is  of  no  immediate,  although  there  may  be  a  remote,  ad- 
vantage. At  all  events  it  does  not  meet  the  terms  of  the  condition, 
which  the  lessors  had  the  right  to  insist  on,  and  is  not,  therefore,  a 
compliance  with  it.  But  a  condition  subsequent,  such  as  this,  is  re- 
served for  the  benefit  of  the  grantor  and  his  privies  in  blood,  who 
alone  can  take  advantage  of  the  breach,  unless  it  is  otherwise  stipu- 


OTHER    MINING    LEASES.  723 

lated.  McKissick  v.  Pickle,  i6  Pa.  140.  It  is  not  available — by  all 
the  authorities — to  any  and  every  one  who  may  happen  along  after- 
wards in  the  title.  Atlantic  &  Pacific  Railroad  v.  Mingus,  165  U. 
S.  413,  17  Sup.  Ct.  348,  41  L.  Ed.  770;  Wills  v.  Mfrs.'  Nat.  Gas  Co., 
130  Pa.  222,  18  Atl.  721,  5  L.  R.  A.  603.  The  estate  continues  un- 
disturbed until  the  proper  steps  are  taken  to  enforce  the  forfeiture, 
the  right  to  do  which  subsists  as  a  mere  right  of  action,  which  can- 
not be  conveyed  to  or  vested  in  a  stranger.  Ruch  v.  Rock  Island, 
97  U.  S.  693,  24  L.  Ed.  iioi.  Nor  are  the  present  conveyances 
leases,  within  the  meaning  of  Act  32  Hen.  VI 11,  c.  34,  by  which  the 
right  might  otherwise  be  claimed.  Rob.  Dig.  Brit.  Stat.  227.  Unless, 
therefore,  a  move  was  made  by  those  who  were  entitled  to  assert  the 
breach,  it  is  not  open  to  the  plaintiff  company,  which  has  taken  title 
subsequently.  The  usual  means  is  by  entry  for  condition  broken, 
but  it  may  be  by  any  equally  significant  act;  a  freehold  estate  at 
common  law  being  able  to  be  determined  only  by  act  in  pais  of  equal 
notoriety  with  that  by  which  it  was  created.  Davis  v.  Gray,  16  Wall. 
203,  21  L.  Ed.  447.  It  remains  to  be  seen,  what,  then,  if  anything, 
was  done  in  that  direction  by  either  of  these  lessors. 

On  December  17,  1892,  Israel  Seese  and  wife,  by  deed  of  general 
warranty,  sold  and  conveyed  to  Robert  H.  Sayre,  his  heirs  and  as- 
signs, all  the  coal  underlying  the  land  which  they  had  leased  in  De- 
cember, 1878,  to  the  defendant  Brown;  Mr.  Sayre  subsequently 
conveying  to  the  Wilmore  Coal  Company,  by  whom  entry  was  made 
and  the  coal  mined.  The  out  and  out  conveyance  of  the  coal  in  this 
way  by  the  lessor  was  a  direct  and  unequivocal  assertion  of  title  to 
and  dominion  over  it,  which  being  followed  by  the  recording  of  the 
deed,  the  equivalence  of  livery  (Caldwell  v.  Fulton,  31  Pa.  475, 
72  Am.  Dec.  760),  as  well  as  the  entry  on  and  mining  of  the  coal 
under  it,  must  be  regarded,  not  only  as  expressive  of  an  intent  to 
take  advantage  of  the  lessee's  default,  but  as  effective  to  do  so,  the 
same  as  by  entry  and  forfeiture  actually  declared.  The  two  grants 
being  inconsistent  and  conflicting,  the  defeasible  one,  under  the  as- 
sault"' so  made  upon  it,  must  give  way ;  the  outstanding  estate  being 
thereby  divested,  and  revested  in  the  original  grantor,  for  the  bene- 
fit of  his  grantee.  Emery  v.  De  Colier,  117  Pa.  153,  12  Atl.  152; 
Venture  Oil  Co.  v.  Fretts,  152  Pa.  451,  25  Atl.  732;  Wolf  v.  GufTey, 
161  Pa.  276,  28  Atl.  II 17;  Bartley  v.  Phillips.  179  Pa.  175,  36  Atl. 
217;  Stone  V.  Marshall  Oil  Co.,  188  Pa.  602,  41  Atl.  748,  11 19;  Aye 
V.  Philadelphia  Co..  193  Pa.  451,  44  Atl.  555,  74  Am.  St.  Rep.  696; 
Wheeling  v.  Phillips,  10  Pa.  Super.  Ct.  634.  The  case  of  Rannels 
V.  Rowe"(C.  C.  A.)  145  Fed.  296,  where  this  is  denied,  is  to  be  dis- 
tinguished;  the  second  deed,  although  recorded,  not  having  been 
brought  home  to  the  original  grantee  by  act  or  entry  under  it.  This 
lease,  so  far  as  the  coal  is  concerned,  is  therefore  dead.     *     *     * 

As  to  the  John  D.  Shafifer  lease,  also,  the  lessee  failed  to  comply. 
The  provision  there  was  that  the  lease  should  be  void  if  the  railroad 


724  OIL,    GAS    AND   OTHER    MINING    LEASES. 

was  not  commenced  along-  Stony  creek  within  five  years,  which 
would  be  fulfilled  in  terms  by  the  building  of  the  Baltimore  &  Ohio 
branch  in  1880,  if  it  stood  alone.  But  it  was  additionally  provided 
that  "the  railroad  must  come  within  one  and  one-half  miles  of  the 
said  farm,"  and  this  is  as  much  a  part  of  the  condition  as  anything ; 
and  as  the  property  was  located  some  four  miles  up  Paint  creek,  and 
the  Baltimore  &  Ohio  along  Stony  creek  came  no  nearer  than  that, 
the  condition  clearly  was  not  met.  This  is,  however,  of  no  advan- 
tage to  the  plaintiflf ;  for,  according  to  the  test  applied  above,  noth- 
ing was  done  to  enforce  the  breach.  It  is  true  that  there  was  a  deed 
to  Mr.  Berwind  from  John  D.  Shaffer,  November  9,  1896,  for  all 
the  coal  in  the  "B"  or  Miller  vein,  one  of  the  two  veins  leased  to  the 
defendant  Brown.  But  this  conveyance  was  made  expressly  sub- 
ject to  the  terms  and  conditions  of  the  lease;  the  grantee  being 
given  the  reciprocal  benefits  and  advantages  derived  therefrom.  This 
was  a  recog-nition  of  the  lease,  and  not  an  avoidance  of  it.  Aye  v. 
Philadelphia  Co.,  193  Pa.  45i»  44  Atl.  555,  74  Am.  St.  Rep.  696. 
And  while  it  was,  indeed,  further  provided  that  if  the  lease  was 
void,  or  at  any  time  thereafter  should  be  held  invalid,  the  coal  as 
so  conveyed  should  be  free  from  its  operation,  the  grantee  in  this 
respect,  so  far  as  possible,  being  put  in  the  grantor's  place,  yet  this 
falls  far  short  of  the  assertive  action  required  to  declare  the  condi- 
tion broken  and  annul  the  lease,  which,  while  voidable,  therefore,  at 
that  time,  must  now  be  held  to  be  intact.     *     '■■'     * 

To  summarize  the  results  upon  this  part  of  the  case :  Out  of  the 
19  leases  in  suit,  15  of  which  have  been  called  into  question  by  rea- 
son of  the  condition  with  regard  to  the  building  of  the  railroad,  the 
Israel  Seese,  David  Seese,  Samuel  Knavel,  David  J.  Shaffer,  and 
John  Koontz — 5  in  all— must  be  held  to  be  no  longer  in  force ;  the 
condition  in  each  instance  having  been  broken,  and  proper  action 
taken  to  assert  the  breach.  But  as  to  the  rest,  some  10  in  number, 
counting  the  Maria  Young  for  the  moment,  there  is  nothing  of  the 
kind  upon  which  this  can  be  affirmed ;  and  if  they  are  to  be  avoided, 
therefore,  it  must  be  upon  some  other  ground. 

There  remains  to  be  considered,  however,  the  questions  of  for- 
feiture and  abandonment  which  have  been  raised,  and  which  apply 
to  all  the  leases  alike,  affording  additional  ground,  if  sustained,  for 
declaring  invalid  those  which  have  been  already  so  held.  The  claim 
of  forfeiture  is  based  on  the  failure  of  the  lessee  to  mine  or  pay  roy- 
alty ;  this  being  in  absolute  and  flagrant  disregard,  as  it  is  said, 
of  the  purpose  of  leasing,  which  was  to  secure  to  the  lessors  an  in- 
come from  the  royalties  to  be  received.  Although  no  minimum 
quantity  was  fixed,  a  covenant  to  mine  with  reasonable  diligence  is 
unquestionably  to  be  implied.  Watson  v.  O'Hern,  6  Watts  (Pa.) 
362 ;  Lyon  v.  Miller,  24  Pa.  392 ;  Ellis  v.  Lane,  85  Pa.  265  ;  Koch  & 
Balliett's  App.,  93  Pa.  434 ;  Pittsburg  Railroad  Company's  App.,  99 
Pa.  177;  Ray  v.  Gas  Co.^  138  Pa.  576,  20  Atl.  1065,  12  L.  R.  A.  290, 


OTHER    MINING    LEASES.  7^5 

21  Am.  St.  Rep.  922;  Patterson  v.  Graham,  164  Pa.  234,  30  Atl. 
247;  Aye  V.  Phila.  Co.,  193  Pa.  451,  44  Atl.  555,  74  Am.  St.  Rep. 
696;  Price  V.  Nicholas,  4  Hughes,  616,  Fed.  Cas.  No.  11,415;  Hug- 
gins  V.  Daley,  99  Fed.  606,  40  C.  C.  A.  12,  48  L.  R.  A.  320;  Sharp 
V.  Behr  (C.  C.)  136  Fed.  795;  Brewster  v.  Lanyon  Zinc  Co.  (C.  C. 
A.)  140  Fed.  801  ;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397,  2  S.  E.  713, 
5  Am.  St.  Rep.  285 ;  Sharp  v.  Wright,  28  Beav.  120.    But  the  rem- 
edy for  a  breach  is  not  a  bill  to  forfeit  or  avoid,  but  an  action  at  law 
for  damages  (Koch  &  BalHett's  App.,  93  Pa.  434;  Janes  v.  Emery 
Oil  Co.,  I  Penny.   [Pa.]  242),  or,  possibly,  an  ejectment,  based  on 
a  right  of  entry,  for  nonperformance    (Barker  v.  Dale,   17  Pittsb. 
Leg.  Journ.  19,  Fed.  Cas.  No.  988;  contra,  Blair  v.  Peck,  i  Penny. 
[Pa.]  247).    The  lessee,  as  we  have  seen,  has  an  estate  in  the  coal, 
which  cannot  be  defeated  or  divested  merely  by  reason  of  covenants 
broken;  it  not  being  so  provided  in  the  lease.    "The  common-law 
rule  is  well  settled  that  a  breach  by  the  lessee  of  his  covenants  or 
agreements  in  the  lease  does  not  work  a  forfeiture  of  the  term,^  in 
the  absence  of  an  express  stipulation  in  the  lease,  or  the  reservation 
of  the  power  of  re-entry  in  case  of  such  breach.   The  general  remedy 
of  the  lessor  in  such  case  is  merely  by  action  for  the  recovery  of 
damages."    18  Am.  &  Eng.  Encycl.  Law  (2d  Ed.)   369.    And  this 
applies  to  implied  covenants,  the  same  as  to  express  ones.     Harris 
V.  Ohio  Oil  Co.,  57  Ohio  St.  118,  48  N.  E.  502.    It  may  be  that  an 
action  at  law  is  not  at  all  times  adequate,  and  that  a  chancellor  un- 
der some  circumstances  would  be  authorized  to  interfere  in  conse 
quence.   Brewster  v.  Lanyon  Zinc  Co.  (C.  C.  A.)  140  Fed.  801.   But 
that  is  not  the  case  here.    It  may  not,  indeed,  be  altogether  easy  to 
say,  without  any  minimum  quantity  reserved,  for  just  how  much 
at  any  given  time  either  of  the  lessors  in  the  case  in  hand  would  be 
entitled  to  sue ;  but  that  cannot  be  regarded  as  insuperable,  other 
mining  operations   similarly   situated   and   conditioned   affording  a 
comparative  guide.    The  lessee  was  to  account  and  pay  every  three 
months  for  what  he  had  mined  ;  and  each  lessor  would  therefore 
have  the  right,  as  the  measure  of  his  damages,  to  sue  at  the  end  of 
every  such  period  for  whatever  amount  could  have  been  produced 
with  the  exercise  of  reasonable  diligence  from  the  tract  involved, 
having  regard  to  its  size  and  the  situation  of  the  coal  upon  it,  as 
well  as  the  methods  of  mining  in  vogue  at  the  time  in  that  general 
section  of  the  bituminous  coal  field  (Bradford  Oil  Co.  v.  Blair,  113 
Pa.  83,  4  Atl.  218,  57  Am.  Rep.  442)  ;  and  that  (to  meet  an  objection 
of  defendants'  counsel,  and  notwithstanding  what  is  said  in  Price  v. 
Nicholas,  4  Hughes,  616,  Fed.  Cas.  No.  11,415.  which  gives  some 
countenance  to  it),  without  reference  to  whether  there  were  railroad 
or  other  facilities  for  transporting  or  handling  it,  as  to  which  the 
lessee  took  the  chance,  having  made  no  stipulation  with  regard  to 
it,  other  than  what  we  have  seen.   While,  then,  it  was  of  the  essence 
of  the  contract  that  mining  should  be  prosecuted  with  reasonable 


726  OIL,    GAS    AND   OTHER    MINING    LEASES. 

diligence,  and  it  would  no  doubt  be  convenient,  as  well  as  conducive 
to  justice,  if  the  right  to  forfeit  for  the  indefinite  and  long-continued 
failure  to  mine  or  pay  royalties  could  be  imported  into  it — a  sort  of 
forfeiture  by  abandonment,  as  it  is  denominated  in  Aye  v.  Phila- 
delphia Co.,  193  Pa.  451.  44  Atl.  555,  74  Am.  St.  Rep.  69(^no  case, 
by  actual  decision,'*^  seems  to  have  gone  that  far,  and  nothmg,  there- 
fore, can  be  made  out  of  the  fact  here. 

Quite  different,  however,  is  the  matter  of  abandonment.  Ordi- 
narily this  is  a  question  of  fact,  to  be  determined  by  the  circum- 
stances ;  the  intent  being  largely  controlling.  But  under  certain  con- 
ditions it  may  l>ecome  a  question  of  law,  to  be  declared  by  the  court, 
particularly  when  the  facts  are  undisputed.  Atchison  v.  McCulloch, 
5  Watts  (Pa.)  13 ;  Forster  v.  McDivit,  5  Watts  &  S.  359 ;  Sample  v. 
Robb,  16  Pa.  305  ;  Paine  v.  Griffiths.  86  Fed.  452,  30  C.  C.  A.  182. 
Legally  defined,  it  may  be  said  to  be  the  giving  up  or  relinquishment 
of  property  to  which  a  person  is  entitled,  with  no  purpose  of  again 
claiming  it  and  without  concern  as  to  who  may  subsequently  take 
possession,  i  Cyc.  4;  Moon  v.  Rollins,  36  Cal.  333,  95  Am.  Dec. 
181  ;  Judson  v.  Malloy,  40  Cal.  299 ;  Hagan  v.  Gaskill,  42  N.  J.  Eq. 
215,  6  Atl.  879;  Dikes  v.  Miller,  24  Tex.  424;  Burke  v.  Hammond, 
76  Pa.  172.  It  is  the  voluntary  forsaking  or  throwing  away  of  prop- 
erty, leaving  it  open  to  be  appropriated  by  the  first  comer.  McGoon 
V.  Ankeny,  1 1  111.  558 ;  Eads  v.  Brazelton,  22  Ark.  499,  79  Am.  Dec. 
88.  It  may  be  a  question  how  far  a  vested  legal  title  to  a  corporeal 
hereditament  can  ever  be  lost  bv  mere  abandonment  or  neglect  (i 
Cyc.  6;  2  Washb.  Real  Prop.  [6th  Ed.]  §  1888;  Mayor  v.  Riddle,  25 
Pa.  259),  although  it  is  held  that  it  may  be,  in  Holmes  v.  Railroad,  8 
Am.  Law  Reg.  (O.  S.)  716,  and  seems  to  be  recognized  as  possible 
in  Venture  Oil  Co.  v.  Fretts,  152  Pa.  45i»  25  Atl.  732,  although  by 
nothing  short  of  the  statute  of  limitations,  as  it  is  there  said.  But 
with  regard  to  inchoate,  and  particularly  mining  and  other  similar 
rights  and  privileges,  the  doctrine  is  well  established,  diflfering  only 
in  its  application  with  the  nature  and  extent  of  the  rights  and  estates 
granted,  and  the  character  of  the  mineral  or  other  thing  afifected, 
whether  fugitive,  like  oil  and  gas,  or  soHd  and  stable,  like  coal  and 
ore  in  place,  i  Cyc.  7 ;  20  Am.  &  Eng.  Encycl.  of  Law  (2d  Ed.)  775 
and  785.  Thus,  in  Aye  v.  Phila.,  193  Pa.  451,  44  Atl.  555,  74  Am. 
St.  Rep.  696,  where  there  was  a  lease  of  lands  for  20  years,  with  the 
exclusive  right  of  searching  and  operating  for  oil  and  gas,  an  unex- 
plained cessation  for  4  years  was  held  to  raise  a  presumption  of 
abandonment.  In  Patterson  v.  Graham,  164  Pa.  234,  30  Atl.  247, 
also,  where  standing  timber  was  sold  for  a  definite  price,  with  the 

"a  Bordering  on  this,  however,  it  is  said  by  Porter,  J.,  in  Cole  v.  Taylor,  8 
Pa.  Super.  Ct.  19,  with  regard  to  a  two  years'  delay  to  operate  an  oil  lease: 
"It  would  seem  that  the  failure  so  to  produce  for  so  unreasonable  a  length 
of  time  ought  in  equity  to  work  a  forfeiture  of  the  rights  of  the  lessees." — Rep. 


OTHER    MINING    LEASES.  72/ 

privilege  of  manufacturing  it  into  lumber  on  the  land,  under  which 
the  vendee  entered  and  cut  substantially  all  the  saw  timber  available, 
and  then  ceased  operating  and  removed  his  mill,  an  attempt  to  re- 
sume 1 1  years  afterwards  and  cut  the  timber  which  had  matured 
meanwhile  was  held  to  be  a  trespass ;  the  rights  of  the  vendee  having 
been  lost  by  abandonment.  So  in  Paine  v.  Griffiths,  86  Fed.  462,  30 
C.  C.  A.  182,  a  case  peculiarly  like  the  one  in  hand,  both  in  the  terms 
of  the  grant,  the  minerals  affected,  and  the  neglect  to  mine,  it  was 
held  by  the  Court  of  Appeals  of  this  circuit,  that  where  coal  and 
other  minerals,  including  oil  and  salines,  had  been  conveyed  upon  a 
certain  royalty  the  failure  to  operate  or  do  anything  under  the  grant 
for  upwards  of  20  years  amounted  to  an  abandonment  as  a  matter  of 
law,  which  justified  a  bill  to  declare  it  void  as  a  cloud  upon  the  title. 
It  was  further  held  that  mere  speculative  attempts  by  the  grantee  to 
dispose  of  his  rights  were  entitled  to  no  consideration  as  evidence  of 
a  contrary  intent ;  nothing  further  having  been  done  and  there  being 
an  utter  disregard  of  the  obligation  to  mine,  upon  which  the  grant 
rested.  It  is  true  that  the  right  to  abandon  was  expressly  given,  of 
which  the  neglect  of  the  grantee  might  be  regarded  as  evidence  of  a 
purpose  to  avail  himself.  But  no  point  was  made  of  that ;  abandon- 
ment being  squarely  based  upon  the  facts  which  have  been  alluded 
to.  See,  also,  Worrall  v.  Wilson,  loi  Iowa  475,  70  N.  W.  619,  for 
another  case  of  a  coal  lease  which  was  held  to  have  been  abandoned. 
In  the  present  instance,  at  the  time  the  bill  was  filed,  from  24  to 
26  years  had  elapsed  since  the  leases  were  executed,  during  which 
time  not  a  thing  has  been  done  by  the  defendant  Brown  towards  the 
mining  or  development  of  any  of  the  properties  covered  by  them. 
He  has  simply  stood  by  and  held  on,  endeavoring  at  times  to  interest 
others  who  would  do  something,  and  in  a  few  instances  selling  and 
disposing  of  his  rights  for  a  consideration.  According  to  his  own 
admission,  he  never  intended  to  do  more.  In  the  meantime,  by  the 
independent  enterprise  and  efforts  of  other  parties,  the  territory 
which  was  before  discredited  has  been  tested  and  shown  to  be  valu- 
able, and  a  railroad  built  into  it.  The  original  lessors,  evidently  de- 
spairing of  any  results  from  his  direction,  and  in  some  instances  with 
a  declared  object  of  getting  rid  of  the  incubus  of  these  leases  have 
sold  out  to  others  by  whom  these  developments  have  been  effected 
and  the  mining  of  coal  extensively  produced.  Under  the  circum- 
stances, the  rights  granted  to  the  defendant  by  the  leases  in  contro- 
versy must  be  regarded  as  relinquished  and  abandoned.  No  doubt, 
he  took  an  estate  in  the  minerals  conveyed,  but  the  grant  was  for  a 
definite  purpose ;  the  consideration  to  the  original  owners  being,  not 
the  paltry  $5  or  $10  recited  in  the  deeds,  whether  paid  or  unpaid,  but 
the  royalties  which  were  to  be  derived  as  the  result  of  mining.  The 
lessee  was  to  make  the  minerals  of  value  to  them,  which  was  the 
whole  inducement  for  parting  with  them,  and  that,  with  due  dili- 
gence, an  obligation  which  has  been  disregarded  for  nearly  a  genera- 


728  OIL,    GAS    AND   OTHER    MINING    LEASES. 

tion.  The  lessee's  idea  is  that  he  can  he  by  indefinitely  and  yet  retain 
the  rights  granted,  having  99  years,  as  it  is  said,  in  which  to  mine, 
with  the  privilege  of  99  more,  and  after  that  forever.  Time  is  of  no 
consequence,  according  to  the  argument,  and  haste  not  contemplated  ; 
developments  being  virtually  left  to  his  discretion,  subject  only  to 
liability  in  damages  for  unreasonable  inaction.  But  this  is  not  the 
construction  to  be  adopted.  Judged  by  its  purpose,  the  grant  was  not 
absolute  and  unconditional,  but  qualified,  and  the  neglect  to  exercise 
the  rights  and  privileges  conveyed  ;  for  the  period  which  appears 
here,  to  the  grave  detriment  of  the  grantors,  is  to  be  taken  as  a  re- 
linquishment and  abandonment  of  them,  and  that  without  regard  to 
the  acts  or  intent  of  the  grantee,  short  of  actual  assertive  operation. 
Title  to  land  is  lost  by  21  years'  adverse  possession,  by  virtue  of  the 
statute,  and  abandonment  may  well  be  presumed  by  analogy,  with 
regard  to  mining  rights  and  privileges,  conditioned  on  the  payment 
of  royalties,  where  there  has  been  an  absolute  neglect  to  mine  or  pay, 
for  a  like  period.  No  doubt  the  lessee  here  has  had  no  idea  of 
abandoning  if  he  could  help  it,  any  more  than  of  personally  operat- 
ing. He  may  also  have  made  efforts  to  sell  to  or  interest  others, 
although  nothing  in  this  direction  seems  to  have  been  done  for  a 
number  of  years.  Within  his  legal  rights,  his  purpose  is  immaterial ; 
but  speculative  attempts  of  this  kind  amount  to  nothing  on  the  ques- 
tion of  abandonment.  Paine  v.  Griffiths,  86  Fed.  452,  30  C.  C.  A. 
182.  It  may  be  further  true  that,  v/hile  in  the  market  in  this  way 
from  the  start,  there  have  been  no  takers,  because  of  the  coal  in  that 
section  being  underestimated,  and  for  lack  of  full  railroad  facilities, 
until  Mr.  Berwind  took  hold  of  it.  Taxes  have  also  been  paid,  the 
few  years  they  were  assessed ;  and,  when  it  was  found  that  the  coal 
was  being  mined,  parties  were  sent  to  examine  and  report ;  and, 
finally,  r.ction  was  brought  on  account  of  it.  But  all  this  was  ex 
parte  and  unrelated,  and  of  no  consequence.  The  fact  remains  that 
not  a  thing  was  done  nor  a  right  exercised  under  the  leases  for  up- 
wards of  24  years,  and  looking  at  it  from  the  standpoint  of  the  les- 
sors, who  have  waited  in  all  conscience  as  long  as  could  be  expected, 
they  are  therefore  to  be  regarded  as  throvv'n  up  and  abandoned. 

It  is  said,  however,  that  in  Plummer  v.  Hillside  Coal  Co.,  160  Pa. 
483,  28  All.  853 — followed  by  the  Court  of  Appeals  of  this  circuit  in 
a  subsequent  action  between  the  same  parties,  104  Fed.  208,  43  C.  C. 
A.  490 — even  the  lapse  of  60  years  v/as  held  not  to  amount  to  this. 
But  the  distinction  between  that  case  and  this  is  manifest.  There 
there  was  a  sale  and  conveyance  of  the  coal  outright  for  the  price  of 
$200,  which  in  that  early  day  and  place  was  evidently  accepted  as  its 
full  value;  an  extra  $100  being  provided  for  in  case  the  coal  proved 
to  be  abundant  and  of  a  certain  thickness.  Beyond  this  there  was  no 
obligation  on  the  part  of  the  lessee,  except  the  nominal  rent  of  $1  a 
year,  inserted  probably  to  carry  out  the  idea  of  a  lease  which  was 
the  form  of  conveyance  adopted.     The  consideration  to  the  lessor 


OTHER  MINING  LEASES.  729 

was  not  thus  the  development  of  the  mineral  value  of  the,  land  as 
here.  The  lessee  bought  the  coal  as  it  stood  in  place  at  a  definite 
price  in  cash;  the  only  restriction  being  that  he  should  get  it  out 
vv'ithin  the  term  of  the  lease,  100  years.  This,  as  the  court  is  careful 
to  point  out,  is  the  controlling  distinction,  and  the  case  affords  no 
guide,  therefore,  where  it  does  not  appear.  Nor,  in  adopting  and 
following  it,  can  the  Court  of  Appeals  be  regarded  as  recalling  or 
qualifying  the  law  laid  down  in  Paine  v.  Griffiths,  86  Fed.  452,  30 
C.  C.A.  182,  where  abandonment  was  found,  under  circumstances 
and  with  respect  to  leases,  closely  similar  to  those  in  hand. 

It  is  finally  said,  however,  that  the  questions  litigated  are  legal,  to 
be  disposed  of  in  a  court  of  law,  and  that  a  court  of  equity  cannot 
constitutionally  take  cognizance  of  them.     North  Penn  Coal  Co.  v. 
Snowden,  42  Pa.  488,  82  Am.  Dec.  530;  North  Shore  R.  R.  v.  Penn- 
sylvania Co.,  193  Pa.  641,  44  Atl.   1083.     Actions,  moreover,  as  is 
pointed  out,  have  already  been  brought  in  the  United  States  Circuit 
Court  in  New  York,  where  they  can  appropriately  be  considered  and 
passed  upon,  which  it  is  the  purpose  of  the  present  bill,  as  it  is  said, 
to  forestall.     Meck's  App.,  97  Pa.  313.     But  the  removal  of  a  cloud 
by  bill,  in  the  nature  of  a  bill  quia  timet,  is  a  well-established  ground 
of  equitable  jurisdiction,  and  may  be  resorted  to  under  proper  cir- 
cumstances even  where  the  legal  title  is  involved,  and  although  it 
may   not   have  been  previously   established   by  action   at  law.      17 
Encycl.  Plead.  &  Pract.  278.    It  is  not  to  be  exercised  where  there  is 
an  adequate  legal  remedy,  but  that  is  not  the  case  where  the  moving 
partv  is  in  possession,  and  so  is  not  in  a  position  to  assert  or  protect 
his  title  by  action.    Martin  v.  Graves,  5  Allen  (Mass.)  661  ;  Stewart's 
App.,  78  Pa.  88;  Dull's  App.,  113  Pa.  510,  6  Atl.  540;  Slegel  v. 
Lauer,  148  Pa.  236,  23  Atl.  996,  15  L.  R,  A.  547;  Sharon  v.  Tucker, 
144  U.  S.  533,  12  Sup.  Ct.  720,  36  L.  Ed.  532.    Neither  is  a  pending 
action  a  bar,  where  it  is  between  other  parties,  and  extends  to  only 
a  portion  of  the  controversy,  which  is  the  situation  here.     Eaton  v. 
Trowbridge,  38  Mich.  454;  Brewster  v.  Lanyon  Zinc  Co.  (C.  C.  A.) 
140  Fed.  801.     The  actions  in  New  York  are  against  the  Berwind- 
White  Coal  Mining  Company,  and  not  against  the  plaintiff,  and, 
whatever  the  relation  between  the  two,  they  are  nevertheless  distinct 
and  independent  parties,  with  separate,  however  intimate,  interests. 
But,  more  than  this,  the  actions  referred  to  concern  only  a  few  of  the 
leases,  as  to  each  of  which  the  facts  are  more  or  less  different,  and 
differ,  also,  with  respect  to  those  which  remain.     Under  sirnilar  cir- 
cumstances it  was  accordingly  held,  in  Eaton  v.   Trowbridge,   38 
Mich.  454,  not  only  that  a  bill  to  remove  a  cloud  could  be  entertained 
as  to  the  lands  not  so  directly  drawn  in  controversy,  but  that  it  might 
be  extended  to  embrace  those  actually  involved  in  the  actions  pend- 
ing, so  as  to  put  an  end  once  for  all  to  the  whole  litigation. 

In  the  present  instance,  the  material  facts  are  not  disputed,  and  the 
rights  growing  out  of  them  are  clear ;  and,  having  to  be  determined 


730  OIL,    GAS    AND   OTHER    MINING    LEASES. 

in  any  event  by  the  court,  it  is  of  no  consequence  whether  they  are 
determined  by  a  court  of  equity  or  a  court  of  law.  Ferguson's  App., 
117  Pa.  426,  II  Atl.  885;  Sharon  v.  Tucker,  144  U.  S.  533,  12  Sup. 
Ct.  720,  36  L.  Ed.  532.  For  the  reasons  given,  the  leases  held  by  the 
defendants  are  clearly  invalid ;  and,  outstanding  and  actively  asserted 
as  they  are,  and  that  not  by  one  action  but  by  several,  which  are 
capable  of  being  indefinitely  and  vexatiously  multiplied  according  to 
the  number  of  leases  and  the  mining  operations  under  each  of  them 
from  time  to  time,  they  constitute  a  serious  cloud  upon  the  title,  not 
only  as  against  the  present  owners,  but  any  others,  who  might  oth- 
erwise be  inclined  to  purchase  from  them.  From  this,  according  to 
all  the  authorities,  there  being  no  other  adequate  remedy  open,  the 
plaintiff  company  is  entitled  to  be  relieved.  Sharon  v.  Tucker,  114 
U.  S.  533,  12  Sup.  Ct.  720,  36  L.  Ed.  532.  And  to  make  the  decree 
effective  the  invalid  instruments  by  which  the  cloud  is  created  will 
be  required  to  be  delivered  up  and  canceled,  and  a  minute  of  it  made 
in  the  office  where  they  are  on  record.  Neill  v.  Hitchman,  201  Pa. 
207,  50  Atl.  987.  Limited  always,  however,  to  the  coal,  and  not  the 
other  minerals,  as  to  which  alone  an  issue  has  been  made. 

Let  a  decree  be  drawn  in  favor  of  the  plaintiff  to  this  effect,  with 
costs. 


LOVELAND  v.  LONGHEXRY  et  al. 

191 1.    Supreme  Court  of  Wisconsin.    45  Wis.  60,  129  N.  W.  650. 

Action  by  the  Grant  County  2^ lining  Company,  prosecuted  by  C. 
A.  Loveland,  Jr.,  its  trustee  in  bankruptcy,  against  Martin  Long- 
henry  and  others.  From  a  judgment  dissolving  the  preliminary  in- 
junction and  dismissing  the  complaint,  plaintiff  appeals.  Modified 
and  affirmed. 

Suit  by  the  lessee  to  enjoin  repeated  and  continuous  trespass  on 
its  leasehold  by  the  landlord  and  those  claiming  under  him.  Defense 
that  the  lease  was  terminated  by  forfeiture. 

Timlin,  J.^'' — The  defendant  Longhenry  is  the  owner  in  fee  of 
several  adjoining  tracts  of  mineral-bearing  land  and  on  December  6, 
1906,  executed  and  delivered  to  the  Grant  County  Mining  Company 
an  instrument  in  writing  by  the  terms  of  which,  "in  consideration  of 
the  rents,  covenants  and  conditions  herein  agreed  to  be  paid,  kept 
and  performed  by  the  party  of  the  second  part,"  he  leased  and  let 
for  mining  purposes  three  parcels  or  tracts  of  this  land.  To  the  first- 
described  parcel,  viz.,  lot  32,  he  had  no  title,  and  it  was  probably  in- 
serted in  the  lease  by  mistake.  The  second  parcel  is  part  of  lot  No. 
37 ;  and  the  third  parcel  is  part  of  a  tract  which  we  may  designate 

"  Parts  of  the  opinion  are  omitted. 


OTHER    MINING   LEASES.  73I 

and  which  was  known  as  the  "Nagel  Tract."  The  instrument  fur- 
ther provided  that  the  lessee  should  "commence  operations  on  said 
premises  on  or  before  the  tirst  day  of  July,  1907,  and  thereafter  is  to 
prospect  said  lands  and  work,  develop  and  operate  any  mine  or  mines 
discovered  on  said  land  in  a  good,  reasonable  and  minerlike  manner 
for  at  least  nine  months  in  each  and  every  year,  subject,  however,  to 
strikes,  delays  of  carriers  and  breakages  of  machinery  and  other 
causes  beyond  the  control  of  the  second  party."  The  lessor  retained 
surface  rights  except  such  as  would  be  necessary  for  sinking  shafts, 
equipping  machinery,  and  raising  ore.  Provision  for  payments  was 
as  follows:  "The  party  of  the  second  part  agrees  to  and  with  the 
party  of  the  first  part  to  pay  him  as  rents  and  tributes  for  the  uses, 
rights  and  privileges  hereby  given  one-tenth  part  of  the  value  at  the 
railroad  of  all  lead,  drybone,  zinc  and  other  ores  and  minerals  dis- 
covered and  mined  upon  said  premises."  It  is  noticeable  that  the 
lease  fixed  no  time  for  its  expiration,  fixed  no  day  for  the  payment 
of  rents  or  tributes,  and  contained  no  express  provisions  for  forfei- 
ture.    *     *     * 

With  reference  to  the  land  covered  by  the  written  lease,  the  cir- 
cuit court  found  on  sufficient  evidence  that  the  Grand  County  Mining 
Company  after  entering  and  beginning  work  under  the  written  lease 
in  question,  discontinued  mining  operations  on  or  about  September 
I,  1907,  and  carried  on  no  further  work  of  this  kind  until  November 
14.  1908;  "that  the  delay  and  neglect  to  prospect  said  lands  and 
work,  develop  and  operate  any  mine  or  mines  discovered  thereon, 
was  not  caused  by  strikes,  delays  of  carriers,  breakages  of  machinery, 
or  any  other  causes  beyond  the  control  of  the  Grand  County  Mining 
Company  ;  that  said  Grant  County  Mining  Company  did  not  prospect 
said  lands  and  work,  develop,  and  operate  any  mine  or  mines  discov- 
ered on  said  premises  in  a  good,  reasonable  and  minerlike  manner  or 
as  provided  in  said  lease."  The  evidence  shows  beyond  dispute  that 
no  mine  and  no  "crevice  or  range"  containing  ore  was  discovered  on 
the  lands  included  in  the  written  lease  in  question.  There  is  no  proof 
of  the  usages  of  miners.  After  or  at  the  time  of  serving  his  notice 
of  forfeiture  Longhenry  authorized  the  defendant  Wisconsin  Zinc 
Company  and  its  employe  Thorne  to  prospect  for  ore  on  that  part  of 
the  Nagel  tract  covered  by  the  written  lease  in  question,  and  the 
Grant  County  Mining  Company  brought  this  suit  for  an  injunction 
against  Longhenry,  the  Wisconsin  Zinc  Company,  and  Thorne  to  re- 
strain repeated  and  continuous  trespasses  in  so  doing.  While  the 
suit  was  pending  the  Grant  County  Mining  Company  became  bank- 
rupt, and  the  action  is  now  prosecuted  by  its  assignee  in  bankruptcy. 
The  circuit  court  denied  any  relief  to  the  plaintiff  and  dismissed  its 
complaint. 

We  may  leave  out  of  consideration  the  failure  to  pay  rent  or  trib- 
ute on  ore  mined  because  there  was  no  ore  mined  on  any  land  cov- 
ered by  the  written  lease  in  question.    We  may  also  leave  out  of  con- 


'JT^2  OIL,    GAS    AND   OTHER    MINING    LEASKS. 

sideration  any  failure  to  "work,  develop,  and  operate  any  mine  or 
mines  discovered  on  said  land  in  a  good,  reasonable,  and  minerlike 
manner  for  at  least  nine  months  in  each  and  every  year,"  because 
there  was  no  mine  discovered  on  any  land  covered  by  said  written 
lease.  This  leaves  the  only  default  of  the  plaintiff  to  consist  of  sus- 
pending prospecting  operations  on  said  land  from  September  i,  1907, 
to  November  14,  1908.  The  lease  is  expressly  given  in  consideration 
of  the  rents  to  be  received  and  the  covenants  and  conditions  to  be 
performed  by  the  lessee.  No  rent  would  ever  become  due  if  no  ore 
w^as  discovered  and  mined.  No  ore  would  be  discovered  without 
prospecting.  One  of  the  stipulations  of  the  lease  going  to  the  whole 
consideration  and  described  therein  as  a  covenant  and  condition  was 
that  the  lessee  should  after  July  i,  1907,  prospect  the  lands.  This 
meant  diligent  and  fairly  continuous  prospecting  and  search  for  a 
mine  so  that  the  landowner  would  receive  something  for  his  land. 
While  analogies  arising  from  urban  or  agricultural  leases  are  not  to 
be  wholly  rejected,  it  must  be  remembered  that  these  mining  leases 
form  a  distinct  class  of  instruments  creating  special  and  peculiar 
legal  relations  and  legal  rights.  In  Maxwell  v.  Todd,  112  N.  C.  677, 
16  S.  E.  926,  the  mining  lease  had  a  fixed  term  of  99  years,  but  oth- 
erwise it  was  very  similar  in  terms  to  the  lease  in  the  instant  case. 
The  court  noticing  that  there  was  in  the  lease  no  stipulation  for  for- 
feiture for  failure  to  open  and  work  the  mines  held  that  the  construc- 
tion which  the  law  put  on  the  lease  would  be  the  same  as  if  such 
stipulation  had  been  expressly  written  therein.  The  contrary  con- 
struction would  prevent  the  lessor  from  getting  his  tolls  under  the 
express  covenant  to  pay  the  same  and  at  the  same  time  deprive  him 
of  all  opportunity  to  work  the  mine  himself  or  lease  it  to  others.  In 
Starn  v.  Huffman,  62  W.  Va.  422,  59  S.  E.  179,  there  was  a  mining 
lease  from  Starn  to  Huffman  for  one  year  and  as  much  longer  as 
Huffman  should  continue  to  w^ork  the  mine,  the  lessee  to  pay  10 
cents  per  ton  for  all  coal  mined  and  begin  mining  coal  on  or  before 
December  19,  1902,  and  pay  for  said  coal  every  30  days.  There  was 
nothing  in  the  form  of  a  condition,  and  no  express  stipulation  for 
forfeiture.  Nothing  was  done  under  the  lease,  and  it  was  held  that 
this  called  for  a  termination  of  the  lease.  Many  cases  are  collected 
and  reviewed  in  the  opinion  of  the  court.  See,  also,  Shenandoah  L., 
etc.,  Co.  V.  Hise,  92  Va.  238,  23  S.  E.  303 ;  Western  Pa.  G.  Co.  v. 
George,  161  Pa.  47,  28  Atl.  1004 ;  Woodward  v.  Mitchell,  140  Ind. 
406,  39  N.  E.  437 ;  Huggins  v.  Daley,  99  Fed.  606,  40  C.  C.  A.  12, 
48  L.  R.  A.  320;  20  A.  &  E.  Ency.  of  Law,  779,  780,  781  ;  26  Cyc. 
708,  709,  and  cases. 

In  Island  Coal  Co.  v.  Combs,  152  Ind.  379,  53  N.  E.  452,  it  is 
said :  "In  leases  of  mineral  lands,  of  the  nature  of  the  one  in  ques- 
tion, where  the  lessee  agrees  to  pay  to  the  lessor  a  royalty  or  rent, 
which  depends  on  the  amount  of  coal  or  other  product  mined,  the 
lessee  thereby,  in  the  absence  of  any  provision  to  the  contrary,  im- 


OTHER    MINING   LEASES.  733 

pliedly  obligates  himself  to  begin  the  development  of  the  coal,  and 
the  mining  thereof,  within  a  reasonable  time  after  the  execution  of 
the  lease.  As  to  what  may  be  regarded  as  reasonable  time,  however, 
depends  vipon  the  circumstances  of  the  particular  case." 

The  application  of  a  cognate  principle  is  discernible  in  Western  L. 
&  C.  Co.  V.  Copper  River  L.  Co.,  138  Wis.  404,  120  N.  W.  2.'j'j. 
Horner  v.  Railway  Co.,  38  Wis.  165,  contains  these  words  :  "(i)  Al- 
though there  are  technical  words,  which,  if  used  in  a  conveyance,  un- 
mistakably create  a  condition,  yet  the  use  thereof  is  not  absolutely 
essential  to  that  end,  and  a  valid  condition  may  be  expressed  without 
employing  those  words.  (2)  It  is  not  essential  to  a  valid  condition 
that,  in  case  of  a  breach  thereof,  a  right  of  re-entry  be  expressly  re- 
served in  the  deed,  or  that  it  be  expressed  therein  that  the  estate  of 
the  grantee  shall  terminate  with  a  breach  of  the  condition." 

Applying  these  abstract  rules  we  say  in  the  instant  case :  Where  a 
mining  lease  is  granted  upon  the  consideration  that  the  lessee  shall 
observe  the  covenants  and  conditions  thereof,  and  the  lessee  cove- 
nants to  prospect  the  land  and  in  case  he  discovers  a  mine  pay  the 
lessor  rent,  royalty,  or  tribute  based  upon  the  ore  mined  from  such 
mine  if  discovered,  the  covenant  to  prospect  the  mine  is  in  the  nature 
of  a  condition,  and  the  lessee  must  proceed  with  and  persist  in  pros- 
pecting with  reasonable  diligence  and  continuity  of  effort.  Was  the 
delay  of  the  lessee  in  the  instant  case  unreasonable?  In  Norway  v. 
Rowe,  19  Ves.  144,  it  was  averred  in  the  bill  and  apparently  assumed 
to  be  correct  by  the  court  and  counsel  that  by  the  custom  of  Corn- 
wall suspension  of  operations  by  prospectors  or  adventurers  for  a 
year  and  a  day  was  ground  for  forfeiture  of  their  interest  in  the  min- 
eral land.  McSwinney  accepts  this  as  proof  of  the  custom  of  Corn- 
wall in  his  excellent  treatise  on  mines.  In  this  age  and  country  of 
greater  hurry  and  activity,  the  limit  of  suspension  of  prospecting 
sliould  without  sufficient  excuse  certainly  not  exceed  that.  The  find- 
ing of  the  learned  circuit  court,  whose  circuit  includes  the  most  an- 
cient and  active  mining  district  in  this  state,  also  supports  the  con- 
clusion that  the  delay  in  the  instant  case  was  unreasonable.  We  are, 
aside  from  authority  and  foreign  customs,  disposed  to  agree  with 
this  determination.  We  find  no  sufficient  excuse  for  the  delay  in  the 
fact  that  the  lessee  was  without  means  to  carry  on  the  prospecting 
work.     *     *     * 

The  decree  of  the  court  below  must  be  so  modified  as  to  exclude 
from  its  confirmation  of  forfeiture  all  lands  not  described  in  the  writ- 
ten lease  of  December  6,  1906,  and,  as  so  modified,  affirmed. 

Judgment  modified  and  affirmed,  with  costs. 


734  OIL,    GAS    AND    OTHER    MINING    LEASES. 

MUHLENBERG  and  another  v.  HENNING  and  another, 

1887.     Supreme  Court  of  Pennsylvania. 
116  Pa.  St.  138,  9  Atl.  144. 

Covenant  by  Henry  A.  Muhlenberg  and  Hiester  H.  Muhlenberg 
against  John  Henning  and  James  H.  Maderia  to  recover  two  years' 
royalty  under  the  provisions  of  a  certain  lease. 

The  plaintiffs  having  filed  a  copy  of  the  lease,  and  an  averment  of 
the  amount  due  thereunder,  defendants  filed  an  affidavit  and  a  sup- 
plemental affidavit  of  defense,  the  allegations  of  which  are  stated  in 
the  opinion.  Plaintififs  then  took  a  rule  for  judgment  for  want  of  a 
sufficient  affidavit  of  defense,  which  the  court  (Hagenman,  P.  J.) 
subsequently  discharged,  whereupon  plaintiffs  took  this  writ. 

Clark,  J.^" — This  action  of  covenant  w^as  brought  upon  a  contract 
under  seal,  denominated  a  "lease,"  and  dated  July  23,  1883,  by  the 
terms  of  which  the  lessors  granted  to  the  lessees  the  exclusive  right, 
for  five  years,  to  all  the  iron  ore  contained  in  a  certain  tract  of  50 
acres  of  land  therein  described ;  in  consideration  whereof  the  lessees 
agreed  to  pay  to  the  lessors  for  every  ton  "of  clean,  merchantable 
ore,  raised,  mined,  and  taken  away  by  them,  or  their  order,  from  the 
said  premises,  the  price  of  thirty-five  cents,"  etc.  The  lessees  fur- 
ther agreed  "to  raise,  mine,  carry  away,  and  sell  at  least  fifteen  hun- 
dred tons  of  iron  ore  annually,  during  the  continuance  of  this  lease, 
or,  in  default  thereof,  pay  a  royalty  of  $525  annually  ;"  the  lease  to  be 
forfeited  at  the  option  of  the  lessors,  if,  at  the  end  of  any  year,  $525, 
as  rent  or  royalty,  had  not  been  paid  during  the  year. 

It  appears  by  the  several  affidavits  of  defense  that  the  lessees,  after 
the  execution  of  the  lease,  promptly  entered  into  the  possession,  and, 
at  an  expense  of  $3,000,  erected  all  the  machinery  and  appliances 
necessary  for  the  proper  prosecution  of  the  work;  that  they  were 
fully  equipped  to  mine,  dig,  and  wash  all  the  iron  ore  upon  the  tract ; 
that,  with  the  aid  of  practical  miners,  of  large  experience,  they  prose- 
cuted their  undertaking  with  due  diligence  for  nine  months  or  more, 
in  a  workman-like  and  skillful  manner,  but,  after  a  full  exploration 
and  search,  they  failed  to  find  sufficient  ore  to  enable  them  to  carry 
on  and  continue  the  operation  as  was  contemplated  in  their  contract ; 
and,  further,  that  the  ore  which  they  did  find,  and  which  the  said 
tract  contained,  was  of  such  inferior  quality  that,  when  properly  and 
carefully  mined,  washed,  and  prepared  for  market,  in  the  usual  man- 
ner, it  was  not  "merchantable  iron  ore ;"  that  the  lessees  communi- 
cated these  facts  to  the  lessors,  and  the  operation  of  the  mines  was 
thereupon  discontinued,  but  the  machinery  was  suffered  to  remain, 
with  the  verbal  understanding  between  the  parties  that,  as  long  as 

"  Part  of  the  opinion  is  omitted. 


OTHER    MINING    LEASES.  735 

the  mine  was  not  operated,  for  the  reasons  stated,  the  royalty  would 
not  be  required. 

On  April  i,  1886,  this  suit  was  brought  to  recover  two  years'  roy- 
alty, with  the  interest  thereon.  The  question  for  our  consideration 
is  whether  or  not  the  affidavits  exhibit  a  good  defense  to  the  whole 
or  any  part  of  the  plaintiff's  claim. 

The  lessees  were,  without  doubt,  bound  to  prosecute  the  work 
without  delay.  It  was  their  duty  to  search  for  and  find  the  ore,  and 
to  ascertain  its  quality ;  and  if  ore  in  sufficient  quantity,  and  of 
proper  quality,  could  be  found,  they  were  held  to  raise  1,500  tons  of 
it  annually.  Failing  in  either,  they  were  bound  for  the  minimum 
stipulated  royalty  of  $525  per  year.  Johnston  v.  Cowan,  59  Pa.  St. 
275.  If,  however,  it  was  established  by  actual  and  exhaustive  search 
that,  at  the  time  of  the  contract,  there  was,  in  fact,  no  ore  in  the  land, 
or  no  ore  of  the  kind  contracted  for,  it  cannot  be  pretended,  upon 
any  fair  or  reasonable  construction  of  the  contract,  that  the  lessees 
w'ere  nevertheless  bound  for  the  "royalty"  of  $525  annually;  for  the 
payment  of  the  royalty  was  undoubtedly  based  upon  the  assumption 
of  the  parties  that  ore  of  the  quality  specified  existed  there.  The 
subject  of  sale,  it  is  true,  is  the  exclusive  right  to  mine  the  iron  ore. 
But  for  that  right  the  lessors  were  to  be  compensated  according  to 
the  number  of  tons  of  "clean  and  merchantable  iron  ore"  mined  ;  the 
lessees  undertaking  to  mine  1,500  tons  annually,  "or,  in  default 
thereof,"  to  pay  $525  royalty ;  and  how  could  the  lessees  be  in  default 
in  mining  1,500  tons  annually,  if  there  was  no  ore  to  mine?  We  are 
not  to  construe  the  contract  to  require  the  lessees  to  perform  an  im- 
possible thing.  The  $525  is  not  a  penalty.  It  is  the  price  of  the  ore. 
The  grant  was  of  the  ore  in  place,  and,  if  the  subject-matter  of  the 
contract  fail,  the  price  is  not  payable.  If  there  was  no  ore  to  mine, 
there  could  be  no  royalty  to  pay.  As  well  might  the  vendor  of  meat 
which  proved  to  be  putrid,  or  of  a  cargo  of  corn  which  had  no  exist- 
ence, enforce  collection  from  his  vendee.  We  think  the  manifest 
meaning  or  intention  of  the  parties,  as  exhibited  by  the  terms  of  the 
contract,  was  that  1,500  tons  "of  clean  and  merchantable  iron  ore" 
were  to  be  mined  in  each  year,  if  that  quality  and  quantity  of  ore 
were  there  found,  and  that  the  contract,  by  necessary  implication, 
must  be  so  construed. 

There  was  no  guaranty,  it  is  true,  on  the  part  of  the  lessors,  that 
any  ore  was  to  be  found  in  the  land,  or  that  the  operation  would  be 
profitable  to  the  lessees,  who  certainly  entered  upon  the  enterprise 
at  their  own  risk.  The  lessees,  therefore,  could  have  no  recourse 
upon  the  lessors  for  their  outlay,  in  the  event  of  failure.  Harlan  v, 
Lehigh  Coal,  etc.,  Co.,  35  Pa.  St.  287.  On  the  other  hand,  if  the  lat- 
ter were  to  bring  an  action  against  the  former,  upon  the  covenant  to 
work  the  mine,  equity  would  interfere  to  prevent  a  recovery.  Ridg- 
icay  V.  Sneyd,  Kay,  627.  But  the  contract  having  been  made  upon 
the  assumption  of  the  parties  that  ore  of  the  quality  mentioned  ex- 


736  OIL,    GAS    AND   OTHER    MINING    LEASES. 

isted  ill  the  land,  when  it  becomes  manifest  that  the  parties  were  mu- 
tually mistaken,  the  contract  obligation  ceases.  It  may  turn  out  at 
the  trial,  of  course,  that  the  ore  was  in  fact  merchantable ;  but,  as  the 
case  is  now  presented,  we  must  assume  the  facts  to  be  as  stated  in 
the  affidavits  of  defense. 

This  view  of  the  case  accords  with,  and  is  fully  sustained  by,  the 
ruling  of  this  court  in  Kcmble  Co.al  &  Iron  Co.  v.  Scott,  15  Wkly. 
Notes  Cas.  220.     ^^     *     * 

The  authorities  cited  by  the  plaintiff  in  error  are  inapplicable  to 
the  case  under  consideration.     "^^     '•'     '■' 

In  Jervis  v.  Tomkinson,  i  Hurl.  &  N.  195,  the  lessees  entered  into 
the  covenant  knowing  the  exact  state  of  the  mine,  and  with  that  in 
view  covenanted  positively  and  absolutely  to  get  the  quantity  of 
2,000  tons  of  salt  in  every  year,  or  pay  for  the  deficiency  at  the  end 
of  it ;  and  therefore,  whether  they  could  be  got  easily  or  with  diffi- 
culty, or  even  whether  they  existed  at  all,  w^as  held  to  be  immaterial, 
in  the  case  of  an  absolute  and  unqualified  covenant.  While  in  Mar- 
quis  of  Bute  v.  Thompson,  13  Mees.  &  W.  486,  the  plain  intention  of 
the  parties,  as  manifested  on  the  face  of  the  contract,  was  that  the 
rent  stipulated  should  be  paid  whether  there  was  coal  or  not.  There 
was  an  express  provision  in  the  alternative  to  pay  the  rent.  See 
Clifford  V.  Watts,  18  Wkly.  Rep.  925. 

We  are  clear  in  our  convictions  that  the  affidavits  of  defense  in 
this  case  are  such  as  should  send  the  case  to  a  jury,  and  therefore  the 
writ  of  error  is  dismissed,  at  the  cost  of  the  plaintififs,  without  preju- 
dice, etc.^^ 

'•  In  Brooks  v.  Cook,  135  Ala.  219,  34  So.  960,  962,  where  the  lease  was  of 
iron  ore,  Tyson,  J.,  for  the  court,  said :  "The  grant  was  of  the  ore  in 
place,  and,  if  the  subject-matter  of  the  contract  failed,  the  price  is  not  pay- 
able. Indeed,  it  is  expressly  stated  in  the  lease  that  the  lands  designated 
therein  as  belonging  to  plaintiffs,  and  which  the  defendants  are  granted  the 
right  to  mine,  are  'supposed  to  contain  iron  ore.'  When  this  recital  is  taken 
in  connection  with  the  fact  that  the  plaintiffs  were  to  be  compensated  for 
the  right  and  privilege  of  mining  this  ore  by  a  royalty,  we  do  not  see  how 
it  can  be  held  otherwise  but  that  the  contract  was  made  upon  the  assumption 
of  the  parties  that  ore  existed  in  the  land.  This  being  true,  when  it  became 
manifest  that  the  parties  were  mutually  mistaken,  the  contract  obligation 
ceases." 


CHAPTER  XI. 

TENANCIES    IN    COMMON    AND    MINING    PARTNERSHIPS. 

Section  1. — Tenancies  in  Common. 

WILLIAMSON  ET  AL.  V.  JONES  et  al. 

1897.     Supreme  Court  of  Appeals  of  West  Virginia. 
43  W.  Va.  562,  27  S.  E.  411. 

Bill  by  Eliza  Williamson  and  others  against  J.  T.  Jones  and 
others.  Decree  for  complainants,  and  defendant  Jones  appeals.  Re- 
versed. 

Brannon,  J.^'* — *     *     * 

We  start  with  the  fact  that  Jones  was  owner  of  three  undivided 
tenths  in  fee  in  possession,  and  owner  of  a  life  estate  for  the  life  of 
Mrs.  Williamson  in  the  remaining-  seven-tenths,  and  the  plaintiffs 
owners  of  the  remainder  in  fee  in  those  seven-tenths ;  after  the  end 
of  the  life  estate,  a  vested  remainder ;  and,  in  this  condition  of  right 
to  the  land,  Jones  [took  exclusive  possession,  claiming  the  whole,] 
bored  23  wells  upon  the  land,  and  produced  from  May,  1892,  to 
December  21,  1895,  622,281  barrels  of  petroleum  oil  therefrom, 
valued  at  $500,298.  Did  he  have  right  to  bore  for  this  oil?  He 
claims  that  he  had,  and  that  every  barrel  of  it  is  his,  without  liability 
to  account  to  the  plaintiffs ;  while  the  plaintiffs  claim  that  he  had  no 
right  to  bore  and  produce  this  oil,  but,  having  done  so,  he  must  ac- 
count to  them  for  full  seven-tenths.  Did  Jones,  as  tenant  for  life, 
have  right  to  extract  this  oil?  He  had  not.  Petroleum  oil,  in  it& 
place  in  the  land,  is  a  part  of  the  land  itself,  just  as  are  coal,  timber, 
and  iron.  Bettman  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271  ;  Will- 
iamson V.  Jones,  39  W.  Va.  231,  19  S.  E.  436.  A  tenant  for  life  can- 
not do  anything  entailing  permanent  injury  to  the  estate  of  the  re- 
mainderman or  reversioner.  He  cannot,  therefore,  dig  for  gravel, 
lime,  clay,  stone,  or  the  like ;  cannot  open  new  mines  for  minerals. 
I  Lomax,  Dig.  54.  If  he  take  clay  to  make  brick,  not  for  repair  of 
buildings,  but  for  sale,  it  is  waste.  University  v.  Tucker,  31  W.  Va. 
622,  8  S.  E.  410.  It  is  the  duty  of  the  life  tenant  to  protect  the  land 
from  waste  or  injury  even  from  others,  and  he  must  abstain  from  so 

"  Parts  of  the  opinion  are  omitted. 

737 
47 — Mining  Law 


738  TENANCIES    IN    COMMON    AND    FIRMS. 

doing-  himself,  i  Washb.  Real  Prop.  p.  116,  §  24;  i  Lomax,  Dig.  57. 
Therefore,  when  Jones  himself  committed  waste  by  boring  for  oil, 
he  was  a  wrongdoer,  so  far  as  concerns  his  life  estate.  The  remain- 
der-men could  sue  him  in  an  action  of  waste,  as  at  common  law  under 
the  English  statute  of  Marlbridge,  or  in  action  of  trespass  on  the 
case  under  chapter  92  of  the  Code,  and  recover  the  full  value  of 
their  seven-tenths. 

It  is  sought  to  show  that  Jones,  as  life  tenant,  had  right  to  all  the 
oil,  by  the  case  of  Koen  v.  Bartlett,  41  W.  Va.  559,  2^^  S.  E.  664,  but 
that  case  will  not  sustain  this  claim.  It  asserts  only  that  a  tenant 
for  life  may  use  the  land  and  its  profits,  including  mines  of  oil  or 
gas  open  when  his  life  estate  begins,  or  lawfully  opened  and  worked 
during  its  existence.  There  the  owner  in  fee  had  made  a  lease  for 
oil,  with  .a  royalty  as  rent,  and  then  conveyed  the  fee,  reserving  a 
life  estate,  and  it  was  held  that  he,  as  life  tenant,  was  entitled,  as 
against  the  remainder-man,  to  the  royalty ;  but  there  the  owner 
had  authorized  the  boring  for  oil,  and  the  conveyance  was  subject, 
in  terms,  to  the  lease,  and,  though  the  boring  had  not  produced  wells 
open  at  the  commencement  of  the  life  estate,  they  were  bored,  un- 
der authority,  during  its  continuance.  We  held  that  a  mine  bored 
in  the  period  of  the  life  estate,  under  prior  authority,  was  to  be 
deemed  as  if  an  open  mine  at  the  commencement  of  the  life  es- 
tate. It  is  established  that  an  open  mine  may  be  worked  to  even  ex- 
haustion by  the  life  tenant.  Crouch  v.  Puryear,  i  Rand.  (Va.) 
258 ;  I  Lomax,  Dig.  54.  The  offense  of  waste  consists  in  the  first 
penetration  and  opening  of  the  soil,  and  it  is  not  waste  to  dig  in 
mines  or  pits  already  open,  which  have  become  part  of  the  annual 
profit  of  the  land.  Tayl.  Landl.  &  Ten.  §  249a.  When  Jones  pene- 
trated the  soil,  he  did  so  without  warrant  from  his  life  tenancy,  and 
without  warrant  from  the  creator  of  the  life  estate.  There  was  no 
open  well,  no  antecedent  authority  to  bore  one.  Koen  v.  Bartlett  is 
no  help  for  him.  It  may  occur  that,  if  Jones  could  not  bore,  his  life 
estate  would  be  worthless  to  him.  The  oil  might  be  drawn  off  by 
wells  on  an  adjoining  tract.  As  life  tenant,  he  was  entitled  to  none 
of  it.   Such  is  the  quality  of  that  estate. 

Having  seen  that  Jones,  as  life  tenant,  could  not  take  this  oil, 
we  shall  next  inquire  whether  his  right  as  owner  in  fee  of  three- 
tenths  gave  him  right  to  do  so.  Jones  was  a  tenant  in  common  with 
the  owners  of  the  seven-tenths.  By  the  old  law  one  tenant  in  com- 
mon was  not  liable  to  another  for  waste ;  but  our  Code  of  1891 
(chapter  92,  §  2)  has  remedied  this  unreasonable  rule  by  making 
tenants  in  common  joint  tenants  and  parceners  liable  for  waste. 
I  Lomax,  Dig.  499;  2  Minor,  Inst.  620.  Then  we  have  simply  to 
inquire  whether  the  extraction  of  oil  is  waste,  and  under  authorities 
above  given  we  must  answer  that  it  is.  Those  acts  which  would  be 
waste  in  a  tenant  for  life  would  be  between  tenants  in  common.  As 
the  statute  uses  the  law  word  "waste,"  we  must  give  it  the  legal 


TENANCIES    IN    COMMON.  739 

meaning  as  applied  to  tenants  for  life.  Elwell  v.  Burnside,  44  Barb. 
447.  Chapter  100,  §  14,  Code  1891,  gives  an  action  of  account  be- 
tween tenants  in  common  for  receiving  more  than  his  just  share, — 
that  is,  more  than  his  just  share  of  rents  and  profits  from  the  legiti- 
mate use  of  land ;  but  this  has  no  reference  to  waste.  It  does  not 
license  waste.  There  stands  section  2,  c.  92,  branding  it  as  a  tort, 
and  giving  action  for  it,  and.  it  applies  though  one  claim  title  to  the 
whole,  and  commit  waste.  28  Am.  &  Eng.  Enc.  Law,  895.  As  owner 
of  three-tenths  in  fee,  Jones  could  not  bore  for  oil,  any  more  than  a 
stranger,  because  the  act,  whether  done  by  a  co-tenant  or  stranger, 
is  a  wrong.  For  this  purpose  he  was  a  stranger,  so  far  as  the 
wrongful  character  of  the  act  is  concerned.  He  had  right  to  posses- 
sion for  residence  or  other  ordinary  use  working-  no  injury  to  the 
inheritance,  and  therefore  we  term  his  act  waste,  not  technically 
trespass  as  done  by  a  stranger.  "Waste  is  an  injury  to  the  freehold 
by  one  rightfully  in  possession.  This  marks  the  distinction  between 
waste  and  trespass."  i  White  &  T.  Lead.  Cas.  Eq.  loii.  But  the 
nature  of  the  act  is  a  tort  in  both  cases ;  the  same  in  both.  Of  course, 
a  stranger  would  be  liable  for  trespass ;  or,  if  he  converts  the  oil 
from  realty  into  personalty,  the  injured  co-tenant  may  waive  the 
trespass,  and  go  for  the  value  of  the  oil,  or  for  the  money  for  which 
the  trespasser  sold  it.  Indeed,  Jones  claimed  to  own  the  whole  land, 
repudiated  any  co-ownership  with  the  Hickman  heirs,  and  thus  as- 
signed to  himself  the  position  of  a  stranger.  This,  however,  only 
strengthens  the  argument  that  he  is  to  be  regarded  a  wrongdoer 
against  the  owners  of  the  seven-tenths,  as  the  statute  makes  him  a 
wrongdoer  though  he  were  regarded  as  a  tenant  in  common.  It  is 
therefore  immaterial  to  define  his  exact  caste ;  whether  we  regard 
him  as  a  tenant  in  common  or  stranger  it  is  the  same.  If  oil  wells 
had  been  opened,  Jones,  as  co-tenant,  might  set  up  claim  under  his 
three-tenths  interest  to  work  them,  and  take  all  profits  under  some 
cases  (McCord  v.  Mining  Co.  [Cal.]  27  Pac.  863)  ;  though  I  should 
think  he  would  have  to  account  under  section  14,  c.  100,  Code.  Rust 
V.  Rust,  17  W.  Va.  901.  That  would  be  no  wrong;  not  waste.  His 
life  tenancy  would  give  him  the  right  to  take  all  the  oil.  But  there 
were  no  oil  wells  on  it,  nor  any  precedent  authority  to  open  any.  He 
first  pierced  the  soil  in  quest  of  this  fluid  of  fabulous  wealth.  He 
had  no  right  to  pierce  it  to  get  even  his  three-tenths  of  the  oil.^^  If 
he  chose  to  do  so,  of  every  gallon  seven-tenths  belonged  to  the 
owners  of  the  seven-tenths  in  the  land,  because  it  had  been  a  part 
of  their  soil.  These  considerations  repel  all  idea  that  as  owner  of 
the  fee  in  three-tenths  he  could  penetrate  the  soil,  and  convert  to  his 
sole  use,  without  accounting,  all  the  oil  raised.     *     *     * 

This  shows  that  Jones,  as  owner  of  the  life  estate  intervening  be- 
fore the  seven-tenths  would  be  vested  in  possession  could  not  keep 

"  See  Pyle  v.  Henderson,  ante,  p.  693. 


740  TENANCIES    IN    COMMON    AND    FIRMS. 

the  oil.  "Oil  in  the  earth  belongs  to  the  owner  of  the  land,  and  when 
unlawfully  taken  therefrom  by  a  wrongdoer  the  title  of  such  owner 
remains  perfect,  and  he  may  pursue  and  reclaim  it  wherever  he  may 
find  it."  Hughes  v.  United  Pipe  Lines,  119  N.  Y.  423,  23  N.  E. 
1042.  It  may  be  said  that  these  doctrines  would  leave  the  part  owner 
powerless  to  get  any  benefit  from  the  oil.  If  so,  so  it  must  be  as  a 
quality  of  his  estate'  But  it  is  not  so ;  for.  if  he  wished  a  partition, 
he  was  entitled  to  it,  and  thus  could  bore  on  his  separate  share,  and 
take  the  oil  on  it,  and  perhaps  drain  all  from  the  other,  and  hold  it 
acquit  of  account  for  it ;  and,  if  he  did  not  wish  partition,  oil  being 
capable  of  loss  from  wells  on  lands  near  by,  perhaps  he  could  ask 
a  court  of  equity  to  allow  him  to  bore,  and  take  his  share  of  the  oil, 
and  pay  the  balance  to  the  remainder-man,  like  that  jurisdiction 
exercised  by  equity  to  direct  timber  in  a  state  of  decay  to  be  cut 
down  for  the  benefit  of  those  entitled  to  the  inheritance,  if  it  would 
do  no  damage  to  the  life  tenant,  compensating  him  for  the  use  of 
the  land.  Here  Jones  was  himself  the  life  tenant,  i  Lomax,  Dig. 
60 ;  Story,  Eq.  Jur.  §  919.  Thus  the  owners  of  the  seven-tenths  in 
the  land  had  plain  legal  title,  and  their  rights  are  such  as  above  given 
to  seven-tenths  of  the  oil,  unless  something  not  yet  considered  debars 
them  from  such  rights.     *     *     * 

As  above  stated,  Jones  had  no  right  to  any  of  the  oil  as  life  ten- 
ant. As  owner  of  the  three-tenths  of  the  land,  he  had  no  right  to 
produce  the  oil,  and  his  act  in  so  doing  w^as  one  of  waste.  When 
he  did  extract  the  oil,  seven-tenths  of  it  was  by  right  and  title  oil  of 
the  plaintififs,  the  very  oil  itself,  because  taken  from  their  land. 
Jones  converted  this,  their  property,  to  his  own  use.  They  are  en- 
titled to  recover  the  money  he  received  for  it,  if  ascertainable;  if 
not,  its  value.     *     *     * 

It  is  claimed  for  Jones,  if  he  is  not  allowed  all  the  oil,  he  should 
pay  only  one-eighth  of  the  seven-eighths  as  royalty.  If  he  had 
worked  already  open  wells,  it  might  be  more  plausible  to  say  so; 
but  he  first  penetrated  the  soil  as  a  wrongdoer,  in  a  legal  view.  If 
an  open  well,  it  would  be  lawfully  used  by  a  life  tenant,  and  prob- 
ably by  a  tenant  in  common,  as  one  mode  of  enjoyment  of  his  share. 
I  say  probably.  That  matter  is  not  before  us.  Rust  v.  Rust,  17  W.  Va. 
901,  holds  that  where  one  tenant  in  common  occupies  the  whole  prop- 
erty he  is  liable  to  co-tenants  for  a  reasonable  rent  for  it  in  the  con- 
dition it  was  in  when  he  took  possession.  This  is  approved  in  the 
opinion  in  Dodson  v.  Hays,  29  W.  Va.  601.  2  S.  E.  415.  This  doc- 
trine follows  Early  v.  Friend,  16  Grat.  21.  In  the  two  West  Vir- 
ginia cases  the  use  of  the  land  was  for  ordinary  purposes,  not  ex- 
tracting minerals,  and  the  occupying  tenant  had  right  to  occupy 
and  farm  the  land.  The  Early  Case  was  the  use  of  a  salt  well  opened 
before  the  commencement  of  the  co-tenancy,  and  perhaps  the  use 
of  the  salt  water  in  making  salt  by  the  occupying  tenant  was  law- 
ful, as  the  use  of  the  land  in  the  condition  it  was  in  when  he  went 


TENANCIES    IN    COMMON.  74I 

Upon  it,  and  as  it  had  been  used  by  the  ancestor.  And  besides,  be- 
tween him  and  some  of  the  co-owners,  there  was  a  stipulated  rent, 
which  the  judge  gives  as  a  reason  for  the  charge  of  a  rent;  and  be- 
sides he  says  the  occupying  co-tenant  and  the  others  regarded  it  as 
a  renting.  And  the  court  refrained  from  laying  this  down  as  an  in- 
exorable rule,  saying  there  might  be  cases  calling  for  an  account  of 
rents  and  profits.  The  case  in  hand  is  a  case  of  a  different  hue ;  not 
the  case  of  one  cropping  the  land  in  that  legitimate  use  which  a  ten- 
ant in  common  may  make  of  the  land ;  not  use  of  open  salt  or  oil 
well,  which  likely  can  be  used  by  one  tenant  as  it  had  been  before; 
but  when  one  pierces  the  earth,  and  takes  from  its  place  oil  that  is 
a  part  of  the  realty, — an  act  not  of  legitimate  use,  but  destruction 
and  waste  of  the  inheritance  of  the  others.  Almost  an  exactly  simi- 
lar case  to  the  one  in  hand  is  Ruft'ners  v.  Lewis'  Ex'rs,  7  Leigh,  720, 
where  persons  claiming  adversely  to  plaintiffs  were  held  tenants  in 
common  with  them,  and  had  sole  occupation,  and  had  discovered  salt, 
and  bored  wells.  Great  controversy  arose  as  to  the  mode  of  charge 
against  them.  Held  chargeable,  not  with  rental,  but  rents  and 
profits,  if  any  made,  with  credit  for  expenses  and  improve- 
ments.    *     *     * 

It  does  seem  to  me  on  authority  and  reason  that  an  account  of 
rents  and  profits  is  the  true  basis.  I  cannot  see  how,  where  there  is 
no  lease,  no  contract,  no  tacit  understanding  between  the  parties, 
no  past  mode  of  business,  but  one  not  the  true  owner  has  used  and 
received  rents  and  profits  from  land  of  other  people,  you  can  charge 
an  annual  rental,  and  not  their  fraction  of  rents  and  profits  received 
by  the  occupier. 

What  is  to  be  done  with  the  money  to  which  the  plaintiffs  are  en- 
titled ?  Does  it  go  to  them  at  once,  or  is  it  to  be  put  at  interest,  and 
Jones,  as  life  tenant,  get  the  interest  on  it,  during  Eliza  Williamson's 
life,  or  a  certain  sum  for  its  present  worth  ? 

As  above  shown,  by  reference  to  McSwinney  on  Mines,  it  goes  at 
once  to  the  plaintiffs,  and  Jones  has  no  right  to  interest  on  it  during 
the  life  estate  :  ( i )  Because  he  is,  in  a  legal  point  of  view,  a  wrong- 
doer, and,  if  given  interest,  this  would  give  him  the  benefit  of  his 
own  wrong.     *     *     * 

2.  Jones  is  not  entitled  to  interest,  because  he  did  not  own  a  drop 
of  the  oil  belonging  to  the  owners  of  the  7-10.  He  is  not  entitled 
to  the  oil,  and,  of  course,  is  not  entitled  to  the  income  of  interest 
from  its  proceeds.     *     *     =!= 

This  decision  may  be  burdensome  to  Jones,  who  appears  to  be  a 
man  of  great  energy,  business  capacity,  and  merit,  and  I  will  not 
conceal  the  wish  that  we  could,  consistently  with  law,  be  more  fa- 
vorable to  him  ;  but  we  are  bound  by  the  law,  seemingly  very  plain, 
and  in  itself  logical  and  well  established.  The  plain  and  simple 
showing  of  the  voluminous  record  and  contestation  in  this  case  is 
that  he  has  taken  sole  and  exclusive  possession  of  land  belonging 


742  TENANCIES    IN    COMMON    AND    FIRMS. 

in  greater  fraction  to  others,  and  of  liis  own  accord  drawn  from  it 
vast  quantities  of  oil  belonging  to  them  in  clear  law,  and  sold  it,  and 
reaped  rich  return,  and  the  true  owners  demand  their  own  under 
the  law.  If  he  was  mistaken  in  his  own  judgment  as  to  the  title,  or 
from  misadvice,  it  is  a  misfortune  that  is  to  be  regretted,  but  for 
which  the  plaintiffs  are  not  legally  responsible ;  and  if  he  knew  of 
the  defect  of  title,  and  he  surely  had  enough  to  warn  him  and  put 
him  upon  inquiry  before  embarking  in  large  expenditures,  it  seems 
only  rashness,  or  rash  speculation.  In  fact,  however,  the  returns 
bored  the  wells  after  the  first.     *     "■'     * 

As  stated  above,  the  charge  against  Jones  is  to  be  by  rents  and 
profits,  not  by  annual  rentals ;  but  this  presents  a  question  which  has 
given  me  great  perplexity,  and  this  is  the  question,  what  shall  be 
credited  to  Jones  against  rents  and  profits? — especially  whether  he 
shall  be  repaid  expense  of  boring  wells.  Where  one  man,  in  pos- 
session under  a  hostile  defective  claim  or  title,  makes  permanent  im- 
provements, the  common  law  gave  him  no  pay  for  them,  as  he  volun- 
tarily put  them  upon  the  land  of  another ;  but  our  Code  (chapter  91) 
gives  compensation  therefor  if,  when  the  improvements  are  made, 
there  is  "reason  to  believe  the  title  good  under  which  he  or  they 
were  holding."  As  shown  above,  warning  was  given  Jones  by  Ten- 
nant,  his  agent,  and  by  the  record  under  which  he  purchased,  of  the 
rights  of  the  plaintiffs,  and  our  court  has  held  that  this  notice  pre- 
cludes allowance  for  improvements.  Hall  v.  Hall,  30  W.  Va.  779, 
5  S.  E.  260;  Dawson  v.  Grow,  29  W.  Va.  333,  i  S.  E.  564;  Cain  v. 
Cox,  29  W.  Va.  258,  I  S.  E.  298;  Id.,  23  W.  Va.  613.  Good  faith 
would  seem  to  be  the  test,  but  these  cases  affect  Jones,  legally  speak- 
ing, with  a  notice  repelling  good  faith ;  and  yet  there  is  good  ground 
for  saying  that,  as  a  matter  of  fact,  Jones,  from  misadvice  as  to  the 
law,  thought  he  was  buying  a  good  title.  People  generally  think  that 
a  court  sale  always  gives  good  title,  whereas  often  it  does  not. 
Therefore,  viewing  Jones  as  an  adverse  claimant,  or  as  one  who, 
being  really  a  tenant  in  common,  yet  takes  sole  possession,  denying 
the  claim  of  all  others  and  claiming  the  entirety,  and  taking  ex- 
clusively all  rents  and  profits,  it  is  difficult  to  accord  him  compensa- 
tion consistently  with  dry  law.  Even  where  one  joint  tenant  or  ten- 
ant in  common,  not  claiming  the  whole, — not  denying  his  fellow's 
right, — makes  permanent  improvements,  without  his  fellow's  con- 
sent, he  cannot  charge  him,  nor  hold  exclusive  possession  until  re- 
imbursed by  rents  and  profits.     *     *     * 

If  Jones,  by  mistake  of  law,  was  led  to  believe  that  the  court  sale 
conferred  good  title,  that  will  not  serve  him.  Opinion  in  Hall  v. 
Hall,  30  W.  Va.  785,  5  S.  E.  260;  Harner  v.  Price,  17  W.  Va.  523; 
10  Am.  &  Eng.  Enc.  Law,  248,  note. 

But  there  are  other  considerations.  We  are  in  a  court  of  equity, 
which  often  departs  from  dry  legal  rules  in  the  interest  of  substan- 
tial, even-handed  justice.    It  does  not  seem  that  there  is  any  inflex- 


TENANCIES    IN    COMMON.  743 

ible,  iron-clad  rule  in  equity  in  this  matter,  unless  our  statute  im- 
poses it.  This  is  not  the  case  of  a  suit  to  impose  upon  the  co-owner  a 
personal  liability,  or  a  liability  on  his  land,  for  improvements,  nor 
to  continue  in  possession  till  future  profits  shall  reimburse  them; 
but  it  is  a  case  where  the  plaintiffs  ask  an  account  to  charge  Jones 
with  rents  and  profits,  and  he  seeks  to  set  off  improvements.    Yea, 
more,  it  is  a  case  where  the  plaintiffs  ask  to  receive  the  benefit  of 
the  property  in  its  improved  condition, — to  have  the  benefit  of  those 
improvements;  that  is,  they  ask  pay  for  oil  flowing  through  these 
very  wells,  without  which  wells  there  would  not  be  a  gallon  of  oil 
for  them  or  for  Jones.    The  law  is  well  settled  that  in  account  of 
rents  and  profits  you  must  charge  the  party  for  the  property  in  its 
condition  before  his  improvements,  and  not  with  the  profits  of  his 
improvements  (page  789,  30  W.  Va.,  and  page  265,  5  S.  E. ;  Freem. 
Co-Ten.  §  262;  Code,  c.  91,  §  2;  Moore  v.  Ligon,  30  W.  Va.  155,  3 
S.  E.  576 ;  White  v.  Stuart,  76  Va.  566 ;  Early  v.  Friend,  16  Grat. 
21 ;  Fishack  v.  Ball,  34  W.  Va.  644,  12  S.  E.  856).  This  is  a  strong 
factor  in  the  solution  of  this  question.    The  plaintiffs  demand  their 
oil,  solely  the  fruits  of  the  pluck  and  courage  and  energy  of  Jones, 
in  hazardous  enterprises,  which  might  have  involved  him  in  ruin. 
They  came  into  a  court  of  equity,  asking  that  we  accord  them  their 
legal  rights,  and  they  are  given  unto  them,  but  it  is  an  adage  there 
that  he  who  asks  equity  must  himself  do  equity.   He  cannot,  in  every 
instance,   eat   the   fruitage   without   sharing   in   the   burden   of   the 
planting.    I  repeat  that  no  immovable  rule  binds  a  court  of  equity 
in  this  matter.    Freeman's  Co-Tenancy  &  Partition   (section  279) 
says:    "Improvements  made  by  one  co-tenant,  independent  of  any 
agreement  so  to  do,  may  sometimes  be  proper  matter  to  be  consid- 
ered in  taking  an  account;  but  under  what  circumstances,  and  to 
what  extent,  improvements  may  be  considered  in  taking  an  account 
between  co-tenants,  cannot  be  stated  with  desirable  precision.    It  is 
probable,  however,  that  they  will  not  be  made  a  subject  of  compen- 
sation, unless  they  are  of  a  usual  character  and  necessary  for  the 
ordinary  and  conceded  use  of  the  property."    There  is  a  difference 
between  the  case  where  the  party  making  improvements  seeks,  as 
an  actor  or  plaintiff,  to  set  up  a  debt  against  the  co-owner  or  his 
land  for  improvements,  and  one  where  the  co-owner  calls  on  the 
other  to  account  for  rents  and  profits ;  for  in  the  former  case,  gener- 
ally, the  party  will  fail,  and  in  the  latter,  if  the  party  has  acted  m 
good  faith,  he  will  be  allowed  to  set  off  improvements.   See  opmion 
in  Effinger  v.  Hall,  81  Va.  103;  3  Pom.  Eq.  Jur.  §  1241.    There  is 
some  authority  that  where  one  has  in  good  faith  put  improvements 
on  land  he  mav,  by  a  suit  of  his  own,  charge  the  land.    Bright  v. 
Boyd,  I  Story,' 478,  Fed.  Cas.  No.  1,875.    P^ut  unless  there  was  an 
agreement  or  circumstances  tantamount,  or  fraud,  I  would  doubt 
this.    Clearly,  a  consent  to  such  improvement  binds  the  party,  and 
creates  a  lien  on  the  land  and  a  personal  obligation.    Houston  v. 


744 


TENANCIES    IN    COMMON    AND    FIRMS. 


McCluney,  8  W.  Va.  135.  (It  is  proper  to  remark  that  defendants 
claiming  improvements  under  chapter  91,  Code,  may  recover  be- 
yond rents  and  profits,  if  in  good  faith  claimants.)  I  repeat  that 
this  suit  is  to  charge  Jones  with  rents  and  profits,  and  it  is  not  in- 
consistent to  allow  him  as  a  set-off  expenses  of  production,  including 
not  merely  handling  the  oil,  but  the  cost  of  boring  productive  wells, 
under  the  particular  circumstances  of  the  case,  namely,  that  by  rea- 
son of  the  energy  and  risk  of  Jones  he  developed  tliis  hitherto  worth- 
less land  into  an  oil  field  of  almost  amazing  wealth,  yielding  far  be- 
yond the  cost  of  development,  and  leaving  to  go  to  the  plaintiffs 
large  returns.  If  we  give  Jones  his  expenditures,  still  a  large  amount 
goes  to  the  plaintiffs;  otherwise  Jones  loses  them,  and  this  would 
violate  a  rule  of  equity  which,  translated  from  the  Latin,  says  that 
"by  the  natural  law  it  is  not  right  that  any  one  should  grow  rich  by 
the  detriment  and  injury  of  another."  Much  authority  can  be  shown 
to  support  this  doctrine  in  addition  to  that  given  above.  Story,  Eq. 
Jur.  §  1236,  note;  Corcoran  v.  Corcoran  (Ind.  Sup.)  21  N.  E.  468; 
Stewart  v.  Stewart  (Wis.)  63  N.  W.  886;  11  Am.  &  Eng.  Enc. 
Law.  1107.  But  for  Jones'  acts,  this  oil  would  not  have  been  pro- 
duced, so  far  as  we  can  see ;  but  for  him  perhaps  this  oil  now  enrich- 
ing the  plaintiffs  would  have  been  lost  to  them  by  being  drained  off 
by  wells  on  adjoining  lands.  Under  these  circumstances,  equity  can- 
not be  blind  to  the  argument  that  Jones'  acts  have  been  to  the  plain- 
tiffs a  blessing,  not  even  in  disguise,  but  plain  and  apparent.  We 
cannot  be  deaf  to  the  argument  "that  the  labor,  enterprise,  and  busi- 
ness ability  of  this  man,"though  technically  in  the  wrong,  appeal  to 
a  court  of  equity  with  strong  call  for  liberality  so  far  as  to  repay 
him  by  set-off  all  outlay  in  producing  oil,  including  cost  of  pro- 
ductive wells,  and  we  resolve  any  doubt  by  so  holding.  A  debt  for 
such  improvement  could  not  be  made  against  the  plaintiffs,  nor 
would  we  say  that  all  their  oil  could  be  thus  absorbed  ;  but  here  is  a 
large  surplus. 

In  conclusion,  I  must  not  omit  to  say  that  our  holding  in  allowing 
cost  of  wells  is  fortified  by  the  precedent  of  Ruft'ners  v.  Lewis'Ex'rs, 
7  Leigh,  720,  where  parties,  holding  adversely  to  the  plaintiff',  were 
treated  as  tenants  in  common  with  them,  and  as  they  had  bored  wells, 
and  discovered  and  produced  salt  water,  were  allowed  improvements, 
including  cost  of  wells,  as  set-offs  against  rents  and  profits,  and  even 
for  abortive  wells,  the  court  saying:  "The  plaintiffs,  if  they  will 
have  advantage  from  their  successors,  must  be  content  to  share  in 
their  disappointments  and  failures.  He  who  takes  the  profit  must 
share  the  burden."  True,  in  that  case,  the  court  found  that  the  par- 
ties acted  under  fair  belief  of  good  title,  so  that  their  good  faith 
could  not  be  doubted.  Here,  under  cases  above  cited,  we  cannot  find 
that  Jones  is  unaft'ected  by  notice  of  the  plaintiffs'  right ;  but  for 
which  I  should  not,  for  a  moment,  entertain  any  hesitancy  in  allow- 
ing him  cost  of  wells.     I  have  above  treated  the  wells  as  if  perma- 


TENANCIES    IN    COMMON.  745 

nent  improvements.  Perhaps  they  are  not  to  be  so  treated,  but  rather 
as  a  part  of  the  cost  of  production,  Hke  a  tank  for  keeping  the  oil 
when  produced.  An  allowable  improvement  must  be  that  which  adds 
to— enhances  the  value  of— the  land  permanently  for  general  uses ; 
but  a  well  or  derrick  adds  nothing  permanently,  at  least  for  general 
use,  and  usable  only  for  producing  oil, — the  mere  means  or  instru- 
ment of  production.  If  this  be  so,  there  is  less  question  about  allow- 
ing their  cost  as  but  an  item  in  the  cost  of  production,  though  I  have 
discussed  the  subject  under  the  law  relating  to  improvements.  Treat- 
ing cost  of  productive  wells  as  cost  of  production  of  oil,  we  may  say 
that,  though  Jones  had  notice  of  plaintiffs'  right,  yet  he  should  be 
charged  with  net  rents  and  profits,  not  gross, — with  what  he  actually 
received, — otherwise  equity  inflicts  a  penalty.  As  an  abortive  well 
neither  enhances  the  value,  nor  yields  anything  to  the  true  owner,  he 
ought  not  to  be  charged  with  its  costs.  I  confess  that,  under  our 
statute  and  decisions,  I  have  hesitancy  in  this  holding;  but  other 
members  of  the  court  do  not,  and  feeling  that  Jones,  under  the  cir- 
cumstances, has  strong  claims  to  such  allowance,  I  concur  with  other 
members  in  so  holding.  But  the  law  ought  to  be  clearly  and  accu- 
rately understood  in  so  important  a  matter,  and  I  want  to  state  for 
myself  what  I  understand  to  be  the  law,  under  our  statute  and  deci- 
sions. An  ejected  defendant,  who  made  permanent  improvements 
valuable  to  the  estate,  not  when  he  merely  believed  his  title  good,  but 
when  there  was  reason  to  believe  it  good,  may  by  filing  his  claims  un- 
der section  32,  c.  90,  and  section  i,  c.  91,  Code  1891,  not  only  set  off 
the  value  of  such  improvements  against  rents  and  profits,  but  re- 
cover anv  balance  by  which  their  value  may  exceed  rents  and  profits ; 
but  if,  when  the  improvements  were  made,  there  was  not  reason  to 
believe  the  title  good,  he  cannot  even  set  them  off  againstrents  and 
profits ;  and  notice  either  actual  or  constructive,  of  the  defect  of  the 
improver's  title  and  of  the  rights  of  others  will  preclude  allowance 
for  such  improvements.  He  is  precluded  because  he  acts  in  bad  faith 
or  negligence,  and  cannot  take  away  even  the  rents  and  profits  of  an- 
other by  improvements  the  latter  did  not  sanction,  which  by  the 
common  law  became  part  of  the  land  and  belonged  to  the  true  owner, 
no  matter  how  they  came  there,  and  which  the  statute  allowed  only 
to  one  legally  without  blame.  The  wrongdoer  is  not  given  the  bene- 
fit of  his  wrong.    Reversed  and  remanded. 


WOLFE  ET  AL.  V.  CHILDS  et  al. 
1908.     Supreme  Court  of  Colorado.     42  Colo.  121,  94  Pac.  292. 

Error  to  District  Court,  Lake  County ;  Frank  W.  Owers,  Judge. 

Action  by  Minnie  B.  Childs,  administratrix  of  Charles  D.  May,  de- 
ceased, against  one  Zobel  and  others,  alleging  a  tenancy  in  common 
in  the  St.  Louis  lode  mining  claim,  and  that  defendants  Zobel,  Sulli- 


746  TENANCIES    IN    COMMON    AND    FIRMS. 

van,  and  other  defendants  had  wrongfully  extracted  ore  therefrom, 
and  praying  for  an  accounting.  James  S.  Wolfe  and  others  as  co- 
owners  intervened.  There  was  a  judgment  granting  insufficient 
relief,  and  the  interveners  bring  error.     Reversed  and  remanded. 

GODDARD,  J.^" — *     *     * 

2.  Zobel,  as  owner  of  an  undivided  interest  in  the  mine,  under  an 
agreement  with  A.  B.  Sullivan  and  the  Julia  L.  Real  Estate,  Loan 
&  Investment  Company,  but  without  the  consent  and  after  the  re- 
fusal of  the  interveners  [as  co-owners]  to  join  with  him  therein, 
operated  the  mine  from  the  ist  of  May,  1898,  until  October  31,  1902, 
and  leased  parts  of  the  property  containing  ore  bodies  to  certain  les- 
sees. As  to  the  character  of  the  work  done  by  him,  and  the  amount 
expended  therefor,  and  the  value  of  the  ore  extracted  by  him,  and 
the  amounts  received  as  royalties,  the  court  finds  as  follows: 
"(14)  That  said  Zobel,  prior  to  the  ist  day  of  September, 
A.  D.  1901,  did  considerable  development  work  upon  said  property 
in  the  way  of  driving  drifts,  tunnels,  and  winzes  for  the  purpose  of 
exploiting  and  developing  the  same.  *  *  *  (15)  That  subsequent 
to  the  1 2th  day  of  April,  1898,  the  said  Zobel  had  expended  upon  said 
property,  for  development  work  as  aforesaid,  the  sum  of  $4,969.50; 
that  part  of  said  expenditure  was  for  necessary  work  to  the  actual 
mining  of  ore  aforesaid ;  that  part  of  said  work  was  non-productive, 
and  done  on  a  part  of  the  property  remote  from  where  the  ore  sold 
was  mined,  but  was  legitimate  development  and  prospecting  work 
in  a  part  of  said  property  that  has  yielded  no  income ;  that  said  Zobel 
performed  personal  services  and  expended  labor  and  time  in  the 
course  of  said  work  of  a  reasonable  value  of  $2,180.90." 
And  it  further  finds  that  Zobel  received  from  the  ore  ex- 
tracted by  himself  and  in  royalties  the  sum  of  $9,953.06,  and  finds, 
as  a  conclusion  of  law%  that  he  (Zobel)  is  entitled  to  retain  the 
proceeds  of  the  ore  taken  from  the  mine  the  amount  of  $4,969.50 
expended  as  aforesaid  and  $2,180.90  for  his  personal  services,  and 
that  the  balance  of  $2,847.70  only  should  be  credited  and  paid  to  the 
respective  interests  in  the  mine ;  the  amount  so  credited  to  the  inter- 
veners being  the  sum  of  $355.97.  The  interveners  contend  that  the 
conclusion  of  law  announced  by  the  court  upon  the  facts  as  found  by 
it  is  erroneous,  for  two  reasons :  ( i )  That  a  portion  of  the  work,  as 
the  court  expressly  finds,  for  which  such  expenditure  was  made,  was 
"nonproductive  and  done  on  a  part  of  the  property  remote  from 
where  the  ore  sold  was  mined" ;  that  it  was  simply  prospecting,  that 
resulted  in  no  improvement  of  the  property  or  benefit  to  the  inter- 
veners, and  was  a  character  of  work  for  which  Zobel  was  entitled 
to  no  credit.  (2)  That  it  erroneously  allows  Zobel  compensation 
for  his  personal  services. 

"  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


TEXAXCIES    IN    COMMON.  747 

We  think  it  is  clear,  from  the  finding  of  the  court  below,  that  a 
portion  of  the  expenditure  for  which  Zobel  was  allowed  credit  was 
made  in  doing  work  for  which  he  was  not  entitled  to  contribution 
from  these  interveners.  As  was  said  in  Stickley  v.  Alulrooney,  36 
Colo.  242,  244,  87  Pac.  547,  548:  "It  appears  to  be  well  settled  that 
one  co-owner,  without  the  consent  of  the  other  co-owners,  cannot 
demand  from  the  co-owners  who  have  not  joined  with  him,  or  in 
some  way  given  their  consent  to  the  development  or  prospecting  in 
mining  property,  remuneration  for  expenses  incurred  in  so  prospect- 
ing or  developing  the  common  property."  While  the  operating 
tenant  may,  in  case  he  is  called  upon  to  account  for  profits,  set  off 
as  against  a  non-operating  tenant  the  cost  of  the  necessary  improve- 
ments, he  must  show  that  such  improvements  were  necessary,  and 
added  to  and  enhanced  the  value  of  the  common  property.  A  por- 
tion of  the  expenditure  for  which  credit  was  allowed  Zobel  was, 
as  we  have  seen,  not  of  this  character.  What  portion  it  is  impossible 
to  determine  from  the  findings  of  the  court ;  it  appearing  therefrom 
that  part  of  the  expenditure  was  for  work  which  resulted  in  the 
development  of  the  ore  body  which  was  opened  at  the  time  inter- 
veners acquired  title,  and  in  extracting  such  ore,  which  would  be 
a  legitimate  offset,  and  a  part  was  for  prospecting  and  developing 
other  parts  of  the  mine  for  which  he  was  entitled  to  no  contribution 
from  the  interveners.  It  is  also  well  settled  that  tenants  in  common 
are  not  entitled  to  compensation  from  each  other  for  services  ren- 
dered in  the  care  and  management  of  the  common  property,  in  the 
absence  of  a  special  agreement  or  mutual  understanding  to  that 
effect.  17  Am.  &  Eng.  Enc.  Law%  p.  688,  subd.  6;  Gay  et  al.  v. 
Berkey,  137  Mich.  658,"  100  N.  W.  920;  Dunavant  v.  Fields,  68  Ark. 
534,  60  S.  W.  420;  Sharp  v.  Zeller,  114  La.  549,  38  South.  449.  It 
is  manifest,  therefore,  that  the  court  erred  in  allowing  Zobel  the 
full  amount  of  his  expenditures  for  work  and  development,  and 
compensation  for  his  personal  services. 

For  the  foregoing  reasons,  the  judgment  is  reversed,  and  the  cause 
remanded. 

Reversed  and  remanded. 


ZEIGLER  ET  .\L.  V.  BRENNEMAN  et  al. 
1908.     Supreme  Court  of  IllinoisI     237  111.   15,  86  N.  E.  597. 

Bill  by  George  Zeigler  and  others  against  L.  A.  Brenneman 
and  another.  From  a  decree  in  favor  of  a  part  of  the  complainants, 
defendants  appeal.     Reversed  and  remanded,  with  directions. 

This  is  an  appeal  by  L.  A.  Brenneman  and  A.  T.  McDonald  from 
a  decree  of  the  circuit  court  of  Crawford  county  which  cancels  and 


748  TENANCIES    IN    COMMON    AND    FIRMS. 

sets  aside  as  clouds  upon  the  title  of  Edgar  D.  Zeigler,  Ernest 
Zeigler,  Anna  Price,  and  Charles  A.  Rapp  a  lease  executed  to 
appellants  by  George  Zeigler  and  Rachel  Zeigler,  his  wife,  and  the 
assignments  thereof,  upon  18.825  acres  of  gas  and  oil  land  located  in 
Crawford  county.  The  decree  also  enjoins  appellants  or  their 
agents  or  servants  from  in  any  manner  interfering  with  the  said 
Charles  A.  Rapp  or  his  assigns  in  drilling  or  operating  for  oil  or 
gas  on  said  premises,  or  from  entering  thereupon  for  the  purpose  of 
prospecting  or  drilling  for  oil  or  gas,  or  from  doing  any  other  act 
tending  to  the  production  of  oil  therefrom.     *     *     * 

It  appears  from  the  record  that  on  February  11,  1865,  George 
Zeigler  and  Martha  V.  Zeigler,  his  first  wife,  each  became  the  owner 
of  an  undivided  one-half  of  the  land  in  question.  About  nine  years 
before  the  filing  of  the  bill  Martha  V.  Zeigler  died  seised  of  her 
interest  in  this  property,  leaving  no  will,  and  leaving  surviving  her 
her  husband  and  Edgar  D.  Zeigler,  Ernest  Zeigler,  and  Anna  Price, 
her  children  and  only  heirs  at  law.  After  her  death  her  husband 
continued  to  occupy  the  premises,  and  up  until  a  short  time  prior 
to  the  beginning  of  this  suit  managed  and  controlled  the  same  as  if 
they  were  his  own  property.  On  June  9,  1905,  George  Zeigler  and 
Rachel  Zeigler,  his  second  wife,  executed  a  gas  and  oil  lease  to  the 
premises  in  question  to  one  W.  W.  Seybert  for  a  term  of  three  years, 
and  so  long  thereafter  as  oil  or  gas  was  produced  from  the  land  and 
royalties  and  rentals  paid  by  the  lessee  therefor,  giving  to  the  said 
Seybert  or  his  assigns  the  exclusive  right  to  mine  for  and  produce 
oil  and  natural  gas  from  said  tract  of  land.  Seybert's  rights  passed 
to  defendants,  and  Seybert's  lease  and  the  instruments  effecting  its 
transfer  were  recorded  as  recited  by  the  decree.  During  the  month 
of  February,  1907,  appellants  began  drilling  on  the  land,  and  about 
March  11,  1907,  completed  a  productive  and  paying  oil  w^ell.  A 
pump  was  placed  in  the  well,  tanks  erected  on  the  ground,  and  the 
well  was  operated  by  them  until  the  beginning  of  this  suit,  when  a 
receiver  was  appointed,  who  has  since  operated  the  well.  Shortly 
after  the  completion  of  this  well  appellants  hauled  material  on  the 
ground  to  begin  the  construction  of  a  second  well.  After  the  second 
rig  had  been  erected  by  appellants  Edgar  D.  Zeigler  gave  notice  to 
their  agent,  who  was  actually  operating  the  land,  that  he  and  his 
brother  and  sister  had  an  interest  in  the  land  and  warned  the 
agent  that  appellants  should  not  operate  further.  On  June  25,  1907, 
George  Zeigler,  Edgar  D.  Zeigler,  Ernest  Zeigler,  together  with 
their  wives,  and  Anna  Price  and  her  husband,  attempted  to  execute 
a  gas  and  oil  lease  to  the  premises  in  question  to  Charles  A.  Rapp  for 
a  term  of  10  years,  and  as  long  thereafter  as  oil  and  gas,  or  either  of 
them,  was  produced  from  the  land.     *     *     ''■' 

ScoTT,  J. —  (after  stating  the  facts  as  above). -^    George  Zeigler 
^  The  statement  of  facts  is  abbreviated. 


TENANCIES    IN    COMMON.  74Q 

and  Martha  V.  Zeigler,  his  first  wife,  owned  each  an  undivided  one- 
half  of  the  real  estate  covered  by  the  oil  and  gas  leases  here  involved 
as  tenants  in  common.  Upon  the  death  of  the  wife,  intestate,  her 
title  in  the  land  passed  to  their  three  children,  burdened  with 
the  dower  right  of  the  husband.  At  the  time  of  the  execution  of 
the  Seybert  lease  George  Zeigler  was,  as  he  had  been  for  many 
years,  in  the  sole  possession  of  the  real  estate,  claiming  and  appar- 
ently believing  himself  to  be  the  holder  of  the  entire  title.  The  heirs 
of  Martha  V.  seem  to  have  shared  his  belief  as  to  the  condition  of 
the  title.  After  the  lease  had  been  assigned  to  appellants,  they, 
with  the  knowledge  of  the  three  children,  operated  the  land  for  oil 
and  developed  a  paymg  well.  Up  to  that  time  the  children  made  no 
objection  to  appellants'  proceedings,  but  by  their  silence  acquiesced 
in  what  was  being  done.  Shortly  after  a  paying  well  was  brought 
in  by  appellants,  however,  the  children  served  notice  upon  them  to 
the  effect  that  they  owned  an  interest  in  the  land  and  warned 
appellants  to  proceed  no  further. 

It  is  contended  by  appellants  that  these  children,  by  their  silence 
and  acquiescence  while  appellants  expended  large  sums  of  money 
and  demonstrated  the  great  value  of  the  property,  are  estopped  to 
assert,  as  against  the  appellants,  their  title  to  the  premises  or  to 
object  to  appellants  operating  the  land  for  oil.  There  is  evidence 
which  tends  to  show,  and  the  court  found,  that  these  children  were 
ignorant  of  the  fact  that  they  owned  any  interest  in  this  land  until 
after  appellants'  well  was  brought  in.  With  this  finding  of  fact  we  are 
not  disposed  to  interfere.  Within  a  reasonable  time  after  they  so  as- 
certained that  they  owned  an  interest  in  the  land,  they  gave  notice  to 
appellants.  No  estoppel  arises  against  them,  because  during  the  time 
of  their  silence  they  were  ignorant  of  the  fact  that  they  owned  an 
interest  in  the  land.  Mullaney  v.  Dufify,  145  111.  559,  33  N.  E.  750; 
Bradley  v.  Lightcap,  202  111.  154,  67  N.  E.  45. 

The  parties  to  this  litigation  agree  that  one  tenant  in  common  may 
not  operate  for  oil  against  the  protest  or  without  the  consent  of  the 
other  tenants  in  common.  Appellants  contend,  however,  that  the 
lease  from  George  Zeigler  to  Seybert  was  binding,  as  between  the 
parties  thereto,  so  far  as  the  interest  of  George  Zeigler  in  the  oil 
and  gas  was  concerned ;  while  appellees'  position  is  that  the  Seybert 
lease,  having  been  made  by  one  tenant  in  common  without  the  other 
tenants  in  common  joining  therein,  is  wholly  and  entirely  void  so 
long  as  the  lands  remain  undivided,  and  that  during  that  time  the 
owners  of  the  land,  including  the  lessor  of  appellants,  may  have  the 
land  operated  for  oil  and  enjoy  the  profits  precisely  as  though  the 
Seybert  lease  had  never  been  made,  but  that  in  the  event  of  a  par- 
tition of  the  land,  then  the  Seybert  lease  will  become  operative,  and 
give  to  the  holder  thereof  the  sole  right  to  operate  for  oil  the 
portion  of  the  real  estate  set  off  to  George  Zeigler. 


ycQ  TENANCIES    IN    COMMON    AND    FIRMS. 

Appellees  by  their  brief  quote  and  rely  upon  section  198  of  Free- 
man on  Co-Tenancy,  which  in  our  judgment  states  the  law  correctly, 
in  these  w^ords :  "A  conveyance  of  the  minerals  in  a  tract  of  land, 
reserving  his  interest  in  the  land  itself,  made  by  a  co-tenant  to  a 
stranger,  is  regarded  as  void  as  against  the  co-tenants  of  the  grantor, 
'because  it  is  an  attempt  to  create  a  new  and  distinct  tenancy  in  com- 
mon between  one  co-tenant  and  the  others  in  distinct  parts  of  the 
common  estate,  which  is  contrary  to  the  rules  of  law.'  " 

The  lease  is  void  as  against  the  grantor's  co-tenants ;  that  is  to  say, 
in  determining  their  rights  in  the  property,  no  consideration  is  to  be 
given  to  the  existence  of  that  lease.  But  it  does  not  follow  therefrom 
that  it  is  of  no  effect  as  between  the  lessor  and  the  lessee,  even  while 
the  premises  remain  undivided.  On  the  contrary,  as  between  them 
it  is  just  as  valid  as  a  lease  of  property  owned  entirely  by  the  lessor. 
Freeman  on  Co-Tenancy  and  Partition,  §  253.  The  law  is  that 
one  tenant  in  common  may  not  prejudice  the  rights  of  his  co-tenants 
by  a  conveyance  of  any  specific  part,  or  of  any  interest,  right,  or 
license  in  any  specific  part,  of  the  common  property,  but  such  a  con- 
veyance is  valid  as  against  the  grantor,  at  least  by  way  of  estoppel. 
It  is  only  where,  and  as  far  as,  it  comes  in  conflict  with  the  interests 
of  the  co-tenants,  that  it  is  void.  Fredrick  v.  Fredrick,  219  111.  568, 
76  N.  E.  856;  Finch  v.  Green,  225  111.  304,  80  N.  E.  318.  In  the 
present  case,  after  the  execution  of  the  lease  to  Seybert,  he  and 
George  Zeigler  together  held  and  possessed  all  the  privileges,  right, 
title,  and  interest  in  the  land,  including  the  oil  and  gas,  that  George 
Zeigler  had  before  possessed,  and  the  rights  of  George  Zeigler's 
co-tenants  remained  precisely  as  they  were  before  that  lease  was 
made.  For  example,  if  there  was  a  partition  of  the  land,  then  the 
Seybert  lease  would  follow  the  interest  of  George  Zeigler  and  be 
operative  only  upon  the  land  set  off  to  him,  but,  as  between  George 
Zeigler  and  Seybert,  the  latter  had  the  same  right  in  reference  to 
operating  the  land  for  oil  and  gas  that  George  Zeigler  had  prior  to 
the  execution  of  the  lease,  subject  only  to  such  burdens  as  were  im- 
posed upon  Seybert  by  that  instrument.  It  follows,  therefore,  that 
nothing  was  conveyed  to  Rapp  by  George  Zeigler  when  he  joined 
in  the  lease  which  Rapp  took.  Rapp  has  no  greater  right  than  if 
his  lease  was  alone  with  the  children  of  Martha  V.  Zeigler ;  the  Sey- 
bert lease  having  been  recorded  and  operations  having  been  in  full 
swing  on  the  land  under  that  instrument  when  Rapp  took  his  lease. 
Neither  of  the  lessees  can  maintain  partition  (Watford  Oil  &  Gas 
Co.  V.  Shipman,  233  111.  9,  84  N.  E.  53),  and  neither  of  them  has 
the  right  to  operate  without  the  consent  of  the  other  (Murray  v. 
Haverty,  70  111.  318),  but  either  of  the  lessors  can  maintain  partition, 
and  in  that  way  give  to  his  lessee  the  sole  right  to  operate  for  oil 
and  gas  in  the  portion  of  the  land  which  may  be  set  off  to  such 
lessor.  If  appellants  and  Rapp  can  agree  upon  the  method  by  which 
this  land  shall  be  operated  then  they  may  operate  it,  one-half  of  the 


TENANCIES    IN    COMMON.  751 

oil  going  to  Rapp,  out  of  which  he  shall  pay  to  each  of  the  children 
of  Martha  V.  Zeigler  one-eighteenth  part  of  that  half  as  rent  or 
royalty,  the  other  half  of  the  oil  going  to  appellants,  out  of  which 
they  shall  pay  one-eighth  part  of  that  half  to  George  Zeigler  as 
rent  or  royalty.  If,  however,  appellants  and  Rapp  cannot  so  agree, 
neither  can  rightfully  operate  the  land  for  oil  unless  some  one  of  the 
tenants  in  common  elect  to  have  the  land  partitioned,  in  which  event 
the  rights  of  each  lessee  will  attach  to  the  land  set  off  to  his  lessor 
or  lessors.  It  is  true  that  this  view  requires  the  children  of  Martha 
V.  Zeigler  or  their  lessee  to  agree  upon  the  operation  of  the  land 
for  oil  and  gas,  in  case  they  so  desire  to  operate  while  the  land 
remains  undivided,  with  appellants  instead  of  with  George  Zeigler ; 
but  in  law  this  is  not  to  be  regarded  as  prejudicial  to  their  interests, 
as  it  cannot  be  said  that  George  Zeigler's  lessees  will  be  less  ready  to 
join  with  the  children  or  their  lessee  in  operating  the  land  than  would 
George  Zeigler  himself. 

No  question  respecting  the  dower  right  of  George  Zeigler  has 
been  presented  by  the  parties. 

The  decree  herein  must  be  reversed  and  the  cause  remanded  to  the 
circuit  court.  Upon  the  cause  being  redocketed,  the  court  will  enter 
a  decree  providing  that  the  lease  from  George  Zeigler  to  Seybert 
and  its  assignments  shall  be  canceled  and  set  aside  and  for  naught 
held  in  so  far  as  they  appear  to  convey  any  right,  privilege,  or  license 
in  and  to  the  interest  in  the  real  estate  which  Martha  V.  Zeigler's 
children  inherited  from  her,  but  leaving  that  lease  and  its  assign- 
ments in  full  force  and  effect  so  far  as  they  purport  to  convey  any 
right,  privilege,  or  license  with  respect  to  the  interest  of  George 
Zeigler  in  the  real  estate.  The  decree  shall  also  provide  for  the 
division  of  the  oil  already  produced  or  its  proceeds  in  the  manner 
following: 

The  oil  produced  before  June  25,  1907  (which  was  the  date  of  the 
first  lease  made  to  Rapp),  or  its  proceeds,  shall  be  divided,  without 
any  charge  for  production,  in  the  manner  following :  The  one-six- 
teenth to  George  Zeigler,  the  seven-sixteenths  to  appellants,  and  to 
each  of  the  three  children  of  Martha  V.  Zeigler  the  one-sixth  part. 
All  the  oil  produced  on  and  after  June  25,  1907,  down  to  the  time  of 
the  appointment  of  the  receiver,  or  its  proceeds,  without  any  charge 
for  production,  shall  be  divided  in  the  manner  following :  To  George 
Zeigler  the  three  forty-eighths,  to  appellants  the  twenty-one  forty- 
eighths,  to  each  of  the  three  children  of  Martha  V.  Zeigler  the  one 
thirty-sixth,  and  to  Rapp  the  twenty  forty-eighths  part.  The  oil  pro- 
duced since  the  time  of  the  appointment  of  the  receiver,  or  its  pro- 
ceeds, after  his  disbursements  and  charges  have  been  provided  for 
out  of  the  oil  so  produced,  shall  be  divided  in  the  same  manner  as  the 
oil  above  mentioned  which  was  produced  on  and  after  June  25,  1907, 
down  to  the  time  of  the  receiver's  appointment.  For  the  purpose  of 
effecting   such   division   of  the   oil,   or   its   proceeds,   as   is   hereby 


752  TENANCIES    IN    COMMON    AND    FIRMS. 

awarded,  the  decree  shall  provide  for  any  party  hereto  accounting 
and  making  payment  to  any  other  party  hereto  as  may  be  necessary. 
If  desirable  for  the  purpose  of  effecting  such  division,  additional 
proof  may  be  taken,  either  in  open  court  or  upon  a  reference  to  a 
master.  The  costs  of  the  circuit  court  other  than  the  charges  and 
disbursements  of  the  receiver  shall  be  adjudged  one-half  against  the 
complainants  and  one-half  against  the  defendants.  The  receiver  shall 
be  discharged,  and  the  cause  shall  be  stricken  from  the  docket. 
Reversed  and  remanded,  with  directions. 


HALL  V.  VERNON  et  al. 

1899.     Supreme  Court  of  Appeals  of  West  Virginia. 

47  W.  Va.  295,  34  S.  E.  764. 

Bill  by  George  W.  Hall  against  W.  V.  Vernon  and  others. 
Decree  for  defendants,  and  plaintiff  appeals.     Reversed. 

Brannon,  J. — Hall  brought  a  suit  in  equity  against  Vernon  and 
others  in  the  circuit  court  of  Wirt  county,  alleging  that  a  tract  of 
1,103  acres  of  land  was,  as  to  the  surface,  owned  by  Messrs.  Doneho 
and  Vernon,  and  that  they  had  divided  the  surface ;  that  the  tract 
contained  oil ;  that  Messrs.  Doneho,  Vernon,  and  Hall  owned  the 
minerals  in  it,  each  a  third  ;  and  that  in  a  suit  brought  by  Hall  and 
Vernon  against  Doneho  and  others  some  years  before  there  had 
been  a  decree  of  partition  of  the  mineral  ownership  into  lots  40  rods 
wide,  and  running  to  the  exterior  of  the  tract,  which  decree  the  bill 
in  this  case  alleged  had  been  obtained  through  fraud  of  Vernon,  and 
it  sought  to  annul  the  decree.  The  bill  alleged  that  Vernon  under 
this  decree  was  taking  oil  from  the  lots  assigned  him,  and  using 
tanks,  machinery,  etc.,  belonging  to  all  three  persons,  in  his  opera- 
tions. The  bill  asked  (and  it  wa"s  granted)  an  injunction  restraining 
Vernon  from  operation  oil  wells  on  the  tract,  and  from  selling  oil 
produced  thereon,  and  restraining  the  pipe-line  companies  from  pay- 
ing Vernon  for  oil,  or  giving  him  certificates  for  oil  deposited  with 
them.  A  decree  dissolved  the  injunction  so  far  as  it  related  to  the 
land  or  the  partition  assailed,  the  court  holding  that  the  decree  of 
partition  had  not  been  obtained  by  fraud.    Hall  appealed. 

A  majority  of  the  court  are  of  opinion  that  the  decree  of  partition 
is  void,  and  constitutes  a  cloud  over  Hall's  title,  which  a  court  of 
equity  will  dispel  by  setting  aside  the  decree.  They  take  this  position 
on  the  ground  that  oil  and  gas  are  fugitive,  and  that  co-owners  of 
them,  not  owning  the  surface,  have  a  mere  right  to  explore  for  them, 
and  that  it  is  impossible  to  partition  the  same  in  kind,  owing  to  the 


TENANCIES    IN    COMMON.  753 

nature  of  oil  and  gas,  and  that  a  court  cannot  be  called  on  to  do  an 
impossible  thing,  and  has  no  jurisdiction  to  partition  such  a  right  by 
allotting  gas  and  oil  under  certain  sections  of  the  surface.  They  hold 
that  partition  can  be  made  only  by  sale  and  division  of  proceeds. 
Counsel  cites  the  following  authorities  for  that  view :  Gill  v.  Weston, 
no  Pa.  St.  312,  I  Atl.  921 ;  Freem.  Co-Ten.  §  436;  15  Am.  &  Eng. 
Enc.  Law,  607 ;  Smelting  Co.  v.  Rucker  (C.  C.)  28  Fed.  220;  Conant 
V.  Smith,  I  Aiken,  67;  Bainb.  Mines,  155;  Lenfers  v.  Henke,  73  111. 
405 ;  Kemble  v.  Kemble,  44  N.  J.  Eq.  454,  11  Atl.  733. 

I  am  of  the  opinion  that  there  may  be  partition  of  oil  and  gas 
owned  in  fee  separate  from  the  surface,  by  allotting  it  by  sections 
of  the  surface.  True,  one  may  not  get  any  oil ;  but  the  chance  is 
equal  for  all, — the  best  that  can  be  done  to  avoid  the  sale  of  the  prop- 
erty from  its  owners,  which  they  have  right  to  develop  separately, 
as  they  have  right  to  a  partition  in  kind,  if  possible.  Oil  in  place  is 
realty,  and  therefore  partition  may  be  had  of  it  where  the  tract  is 
of  considerable  area.  Freem.  Co-Ten.  §§  433,  435  ;  Hughes  v.  Dev- 
lin, 23  Cal.  501 ;  Barringer  &  A.  Mines  &  M.  p.  54 ;  Marble  Co.  v. 
Ripley,  10  Wall.  339,  19  L.  Ed.  955.  Also,  I  think  that,  as  equity 
has  jurisdiction  in  partition,  it  can  determine  whether  the  subject  is 
partible  or  not,  and  that,  even  if  the  decree  be  erroneous,  it  is  not 
void  in  a  legal  sense. 

The  decree  dissolving  the  injunction  is  reversed  and  the  cause  is 
remanded,  with  directions  to  the  circuit  court  to  enter  a  decree 
setting  aside  the  decree  of  partition  and  perpetuating  the  injunction, 
and  to  proceed  further  as  to  matters  of  personal  propertv  before 
it." 

Dent,  P.  (concurring)." — The  decree  of  partition  in  this  case 
did  not  pretend  to  divide  the  solid  minerals  in  the  land,  as  none  were 
shown  to  exist ;  and  such  a  partition  as  was  made  would  be  in- 
equitable and  unjust  if  any  such  solid  minerals  existed,  for  it  divided 
the  land  into  12  narrow  strips,  and  allotted  to  each  of  the  three 
owners  several  of  these  strips  alternately,  so  that  each  owner's  min- 
eral properties  were  divided  into  several  distinct  strips,  separated 
from  each  other  by  the  strips  belonging  to  the  others.  This  would 
destroy  the  value  of  the  solid  minerals,  for  each  party  would  have  to 
w^ork  each  tract  of  his  separated  minerals  separately,  instead  of  hav- 
ing them  in  one  compact  body.  This  decree  is  nothing  more  than 
a  decree  to  divide  the  carbon  oil,  volatile  minerals,  gas,  and  gaseous 
vapors  supposed  to  be  or  that  might  exist  under  the  land  in  contro- 
versy by  imaginary  lines  drawn  over  the  surface  of  the  land.  Equity 
is  natural  justice.  It  is  equality.  It  never  does  a  vain  thing,  or 
enforces  a  void  or  impossible  contract.  Men  may  divide  the  moon 
by  imaginary  lines,  but  equity  will  not  enforce  their  contract.    They 

^  See  Royston  v.  Miller,  ante,  p.  348. 

^  Parts  of  the  concurring  opinion  of  Dent,    P.,   are  omitted. 

48— Mining  Law 


754  TENANCIES    IN    COMMON    AND    FIRMS. 

may  divide  the  water  in  a  well  or  in  a  brook,  or  the  game  in  the 
forest,  or  the  fishes  in  the  sea,  but  equity  will  afford  them  no  such 
relief.    *    *    * 

In  the  case  of  Kemble  v.  Kemble,  44  N.  J.  Eq.  454,  11  Atl.  /T,t„ 
it  was  held  that  "a  partition  of  lands  containing  mineral  deposits 
cannot  be  ordered  if  the  location,  extent,  and  value  of  such  deposits 
cannot  be  ascertained."  Franklinite  Co.  v.  Condit,  19  N.  J.  Eq. 
394;  Grub  V.  Bayard,  2  Wall.  Jr.  81,  Fed.  Cas.  No.  5,849.  If  such 
is  the  case  with  solid  minerals,  how  absurd  it  is  to  even  talk  of 
partitioning  in  kind  oil  or  gas  of  whose  existence,  quantity,  and 
location  the  court  is  in  entire  ignorance!  And,  if  three  owners  of 
such  a  right  can  have  partition  in  kind,  they  can  transfer  their  inter- 
ests to  others,  without  regard  to  numbers,  until  they  would  be  of 
such  multitude  that  an  attempted  partition  in  kind  would  entirely 
destroy  the  use  of  the  surface  to  the  owner  of  the  land,  and  yet  there 
exist  neither  oil  nor  gas  to  be  partitioned.  Such  a  partition  as  was 
attempted  to  be  made  in  this  case  was  a  mere  nullity,  as  it  par- 
titioned nothing ;  and  yet  it  operates  as  a  cloud  on  plaintift"'s  rights, 
in  fraud  of  which  it  was  procured  by  the  defendant  V^ernon.  It  be- 
ing so  plainly  in  excess  of  the  powers  of  a  court  of  equity,  it  was 
proper  to  set  it  aside  on  motion,  petition,  or  in  any  other  way  its 
illegality  could  be  presented  to  the  court  from  which  it  was  pro- 
cured, without  the  necessity  of  resort  to  an  appeal.  It  was  not  only 
voidable,  but  void,  because  it  undertook  to  accomplish  the  impos- 
sible. Equity  never  undertakes  to  divide  the  unseen  or  invisible,  but 
only  that  which  it  can  see  and  measure  so  as  to  produce  equality. 
Air,  gas,  water,  and  oil  are  not  susceptible  of  partition  in  kind, 
independent  of  land,  either  when  hidden  beneath  the  surface  or 
floating  above  it,  but  only  when  reduced  to  actual  possession  and 
control.  Neither  are  the  rights  and  privileges  to  acquire  possession 
of  these  fugitive  substances  susceptible  of  partition  in  kind,  but  they 
may  be  sold,  and  the  proceeds  thereof  divided.  The  land  under 
which  the  oil  and  gas  is  supposed  to  exist  may  be  partitioned  in  such 
manner  among  the  co-owners  of  the  surface  as  to  effect  a  division 
of  the  gas  and  oil  privileges,  but  not  in  the  manner  attempted  in  the 
present  decree.    Franklinite  Co.  v.  Condit,  19  N.  J.  Eq.  394.    *    *    * 

Plaintiff  is  a  joint  owner  of  the  oil  and  gas,  but  has  no  interest  in 
the  surface,  except  with  his  co-owners,  likewise  co-tenants  in  the 
surface.  He  has  the  indivisible  right  with  them  to  bore  wells  for  the 
extraction  of  oil  and  gas,  but  has  no  separate  right  to  enter  on  the 
lands  at  any  place  to  bore  for  oil  or  gas.  So  that,  when  the  court  by 
its  anomalous  partition  undertook  to  divide  the  oil  and  gas  by  imag- 
inary lines  over  the  surface,  it  could  not  confer  on  plaintiff  the  right 
to  enter  on  the  divisions  assigned  to  him,  for  this  right  he  did  not 
possess,  nor  was  he  entitled  thereto ;  and  any  of  the  co-tenants  of 
the  surface  have  the  legal  right  to  prevent  him  from  so  doing. 
Williamson  v.  Jones,  43  W.  Va.  562,  27  S.  E.  411.    Hence  the  effect 


MINING    PARTNERSHIPS.  755 

of  the  court's  decree,  if  permitted  to  be  of  any  force,  was  to  take 
away  and  destroy  plaintiff's  reserved  rights  to  the  oil  and  gas. 
Thence  its  nullity ;  for  if  plaintiff  had  no  separate  right  to  bore  for 
oil  and  gas,  he  had  the  right  to  demand  his  share  of  the  oil  and  gas 
brought  to  the  surface  by  his  co-owners,  notwithstanding  the  decree. 
The  decree,  therefore,  was  nothing  more  than  an  absolutely  void 
cloud,  that  hindered  him  from  the  enjoyment  of  his  interest  in  the  oil 
and  gas  produced  by  his  co-owners  in  the  exercise  of  their  indivisible 
right  to  produce  the  same.  For  this  he  could  not  sue  in  ejectment, 
and  his  only  adequate  remedy  was  by  an  appeal  to  a  court  of  equity, 
which  could  nullify  the  void  decree,  and  at  the  same  time  restore  to 
him  his  dispossessed  rights.  While  it  is  true  that  a  court  of  equity 
has  jurisdiction  to  determine  w^hat  property  is  partible,  it  has  no 
jurisdiction  to  partition  property  which  is  nondivisible,  and  thus  en- 
tirely destroy  it ;  for  in  attempting  to  do  so  it  exceeds  its  jurisdiction, 
and  renders  its  decree  void.  It  ceases  to  be  a  court  of  equity,  and 
becomes  a  court  of  inequity,  inequality,  and  injustice.  It  assumes 
a  jurisdiction  over  property  not  given  to  it  either  by  common  statute 
or  constitutional  law,  in  violation  of  the  natural  and  reserved  rights 
of  the  individual,  and  its  decrees  are  nullities,  and  binding  on  no 
person.  "If  a  court  grants  relief  which  under  no  circumstances  it 
has  any  authority  to  grant,  its  judgment  is  to  that  extent  void."  i 
Freem.  Judgm.  §  120c.  Under  no  circumstances  had  the  court  the 
authority  to  grant  this  decree  attempting  to  partition  an  indivisible 
right.  Norfolk  &  W.  R.  Co.  v.  Pinnacle  Coal  Co.,  44  W.  Va. 
574,  30  S.  E.  196,  41  L.  R.  A.  414.  Although  the  court  have  juris- 
diction of  the  subject-matter  and  the  person,  yet,  if  it  grants  relief 
which  under  no  circumstances  it  has  the  authority  to  grant,  its  judg- 
ment is  void.  Fithian  v.  Monks,  43  Mo.  502.  The  decree  was  both 
physically  and  legally  impossible.  The  decree  in  this  case  should  be 
reversed,  the  decree  of  partition  vacated  as  a  nullity,  and  the  cause 
remanded  for  further  proceedings  according  to  principles  governing 
courts  of  equity. 


Section  2. — Mining  Partnerships. 

CHILDERS  ET  AL.  V.  NEELY. 

1899.     Supreme  Court  of  Appeals  of  West  Virginia. 

47  W.  Va.  70,  34  S.  E.  828. 

Bill  by  J.  M.  Childers  and  another  against  S.  H.  Neely.    Judg- 
ment for  plaintiffs,  and  defendant  appeals.    Reversed. 


756  TENANCIES    IN    COMMON    AND    FIRMS. 

Brannon,  J.^* — Childers  and  Ramey  filed  a  bill  in  equity  in  the 
circuit  court  of  Tyler  against  Neely,  praying  that  a  partnership  be- 
tween them  be  dissolved,  an  account  taken  "of  all  its  accounts, 
dealings,  and  transactions  whatever,"  and  that  a  manager  be  ap- 
pointed to  take  charge  of  the  property.  The  business  was  oil  pro- 
duction. Neely  admitted  the  joint  enterprise,  but  denied  the  part- 
nership ;  and  he  joined  in  request  for  account,  and  did  not  resist  a 
dissolution,  if  a  partnership.  The  decrees  made  a  partial  account, 
decreed  its  balance  against  Neely,  and  denied  him  further  participa- 
tion in  the  partnership,  and  he  appealed. 

This  case  raises  an  interesting  and  important  subject  in  this  min- 
ing state ;  that  is,  whether,  and  when,  joint  tenants  or  tenants  in 
common,  jointly  operating  for  oil,  are  partners,  or  merely  co-owners. 
The  bill  asserts  a  partnership,  while  Neely  denies  it ;  asserting  that 
it  is  a  case,  not  of  partnership,  but  co-ownership. 

In  two  leases  of  town  lots  for  oil  and  gas  purposes,  Childers 
owned  a  one-fourth  interest ;  Ramey,  a  three-eighths  interest ;  Neely, 
a  three-eighths  interest.  They  were  so  far  joint  tenants.  They 
agreed  to  develop  the  lots  for  oil,  but  made  no  written  articles  of 
partnership, — in  fact,  no  oral  express  formation  of  a  partnership. 
They  simply,  by  an  indefinite  understanding,  agreed  to  develop  their 
common  property,  each  giving  his  skill,  paying  his  share  of  outlay 
proportionate  to  his  ownership,  and  getting  his  share  of  the  product 
proportioned  to  such  ownership.  I  use  the  word  "product,"  instead 
of  "profits,"  because  there  was  no  contract  explicit  on  this  point 
to  distinguish  product  from  profit.  "Partnership  must  be  dis- 
tinguished from  joint  management  of  property  owned  in  common. 
Where  two  partners  own  a  chattel,  and  make  a  profit  by  the  use  of 
it,  they  are  not  partners,  witliout  some  special  agreement  which 
makes  them  so."  T.  Pars.  Partn.  §  76.  Two  heirs  or  other  co- 
owners  of  a  farm,  jointly  farming  it  for  a  profit,  are  not  partners. 
There  is  a  peculiar  partnership,  called  a  "mining  partnership,"  par- 
taking partly  of  the  nature  of  an  ordinary  trading  or  general  part- 
nership, on  the  one  hand,  and  partly  of  a  tenancy  in  common,  on  the 
other.  It  is  an  important  question  to  those  engaged  in  the  oil  and 
other  mining  business  whether  each  one  is  jointly  and  severally 
liable  for  all  the  doings  of  every  or  any  other  of  the  associates  in 
the  venture,  as  in  ordinary  trading  partnerships.  What  is  a  mining 
partnership?  15  Am.  &  Eng.  Enc.  Law,  p.  609,  says:  "When  ten- 
ants in  common  of  a  mine  unite  and  co-operate  in  working  it,  they 
constitute  a  mining  partnership."  Many  authorities  there  cited  thus 
define  it.  See  the  California  case  of  Skillman  v.  Lachman,  83  Am. 
Dec.  96,  and  note  discussing  it  fully ;  Lamar's  Ex'r  v.  Hale,  79  Va. 
147.  Mere  co-w^orking  makes  them  partners,  without  special  con- 
tract.   Barring.  &  A.  Mines  &  M.  Courts  of  equity  take  jurisdiction 

'*  Parts  of  the  opinion  are  omitted. 


MINING    PARTNERSHIPS.  757 

of  them  as  if  general  partnerships.  2  Colly.  Partn.  c.  35.  Of  course, 
owners  of  mines,  oil  leases,  or  farms  can  by  agreement  make  an 
ordinary  partnership  therein;  but  "where  tenants  in  common  of 
mines  or  oil  leases  or  lands  actually  engage  in  working  the  same,  and 
share,  according  to  the  interest  of  each,  the  profit  and  loss,  the  part- 
nership relation  subsists  between  them,  though  there  is  no  express 
agreement  between  them  to  be  partners  or  to  share  profits  and  loss." 
Duryea  v.  Burt,  28  Cal.  569.  The  presumption  in  such  case  would 
be  that  of  a  mining  partnership,  rather  than  an  ordinary  one,  in 
absence  of  an  express  agreement  forming  an  ordinary  general 
partnership.  Perhaps  the  case  of  Bank  v.  Osborne,  159  Pa.  St.  10, 
28  Atl.  163,  and  other  cases  in  that  state  cited  in  Bryan,  Petroleum 
&  Natural  Gas,  283,  would  justify  the  inference  that  the  parties 
operated  as  tenants  in  common;  but  the  current  of  authority  else- 
where recognizes  the  inference  of  mining  partnerships.  That  state 
does  not  recognize  such  a  partnership.  T"stice  Field  said  in  Kahn 
V.  Smelting  Co.,  102  U.  S.  645,  26  L.  Ed.  266;  "Mining  partner- 
ships, as  distinct  associations,  with  different  rights  and  liabilities 
attaching  to  their  members  from  those  attaching  to  members  of  ordi- 
nary partnerships,  exist  in  all  mining  communities.  Indeed,  without 
them  successful  mining  would  be  attended  with  difficulties  and  em- 
barrassments much  gr^eater  than  at  present."  One  leading  distinc- 
tion between  the  mining  partnership  and  the  general  one  is  that  the 
general  one  has,  as  a  material  element  of  its  membership,  the 
delectus  personse  (choice  of  person),  while  the  other  has  not.  Those 
forming  an  ordinary  partnership  select  the  persons  to  form  it, 
always  from  fitness,  worthiness  of  personal  confidence ;  but  we  know 
such  is  not  always  or  often  the  case  in  oil  ventures.  It  is  because 
of  this  delectus  personse  that  the  law  gives  such  wide  authority  of 
one  member  to  bind  another  by  contracts,  by  notes,  and  otherwise. 
One  is  the  chosen  agent  of  the  other.  Hence,  when  one  member 
dies  or  is  bankrupt,  or  sells  his  interest  to  a  stranger,  even  to  an 
associate,  the  partnership  is  closed,  one  chosen  member  is  gone,  the 
union  broken,  because  he  may  have  been  the  chief  dependence  for 
success,  and  the  newcomer  may  be  an  unacceptable  person,  who 
would  entail  failure  upon  the  firm.  In  the  mining  partnership  those 
occurrences  make  no  dissolution,  but  the  others  go  on ;  and,  in  case 
a  stranger  has  bought  the  interest  of  a  member,  the  stranger  takes 
the  place  of  him  who  sold  his  interest,  and  cannot  be  excluded.  If 
death,  insolvency,  or  sale  were  to  close  up  vast  mining  enterprises, 
in  which  many  persons  and  large  interests  participate,  it  would  en- 
tail disastrous  consequences.  From  the  absence  of  this  delectus 
personje  in  mining  companies  flows  another  result,  distinguishing 
them  from  the  common  partnership,  and  that  is  a  more  limited  au- 
thority in  the  individual  member  to  bind  the  others  to  pecuniary 
liability.  He  cannot  borrow  money  or  execute  notes  or  accept  bills 
of  exchange  binding  the  partnership  or  its  members,  unless  it  is 


75^  TENANCIES    IN    COMMON    AND    FIRMS. 

shown  that  he  had  authority ;  nor  can  a  general  superintendent  or 
manager.  They  can  only  hind  the  partnership  for  such  things  as 
are  necessary  in  the  transaction  of  the  particular  business,  and  are 
usual  in  such  business.  Charles  v.  Eshleman,  5  Colo.  107;  Skillman 
V.  Lachman,  83  Am.  Dec.  96.  and  note ;  IMcConnell  v.  Denver,  35 
Cal.  365 ;  Jones  v.  Clark,  42  Cal.  181  ;  IManville  v.  Parks,  7  Colo. 
128,  2  Pac.  212;  Congdon  v.  Olds,  18  Mont.  487,  46  Pac.  261; 
Judge  V.  Braswell,  13  Bush,  67 ;  Waldron  v.  Hughes,  44  W.  Va.  126, 
29  S.  E.  505.  In  fact,  it  is  a  rule  that  a  nontrading  partnership,  as 
distinguished  from  a  trading  commercial  firm,  does  not  confer  the 
same  authority  by  implication  on  its  members  to  bind  the  firm ;  as, 
e.  g.  a  partnership  to  run  a  theater  or  other  single  enterprise  only. 
Pease  v.  Cole,  53  Conn.  53,  22  Atl.  681  ;  Deardorf's  Adm'r  v. 
Thacher,  78  Mo.  128;  Smith,  Merc.  Law,  82:  T.  Pars.  Partn.  §  85; 
Pooley  V.  Whitmore,  27  Am.  Rep.  733.  A  mining  partnership  is  a 
nontrading  partnership,  and  its  members  are  limited  to  expendi- 
tures necessary  and  usual  in  the  particular  business.  Bates,  Partn. 
§  329.  Members  of  a  mining  partnership,  holding  the  major  portion 
of  property,  have  power  to  do  what  may  be  necessary  and  proper 
for  carrying  on  the  business,  and  control  the  work,  in  case  all  cannot 
agree,  provided  the  exercise  of  such  power  is  necessary  and  proper 
for  carrying  on  the  enterprise  for  the  benefit  of  all  concerned. 
Dougherty  v.  Creary,  89  Am.  Dec.  116. 

These  principles  settle  much  of  this  case.  The  demurrer  was  prop- 
erly overruled,  because  there  was  a  partnership,  and  equity  only  has 
jurisdiction  to  settle  partnership  accounts.  5  Am.  &  Eng.  Dec.  Eq. 
74;  17  Am.  &  Eng.  Enc.  Law,  1273.     *     *     * 

When  this  suit  was  brought,  Childers  and  Ramey  obtained  in  it  an 
injunction  enjoining  the  pipe-line  companies  transporting  the  firm's 
oil  from  paying  Neely  for  his  share  of  the  oil  to  which  he  was  en- 
titled under  his  division  orders,  and  enjoining  Neely  from  any  fur- 
ther participation  in  the  partnership,  and  from  selling  his  share  of 
the  oil ;  thus  taking  from  him  the  wells  and  their  proceeds,  and  leav- 
ing Ramey  in  sole  charge  of  them.  Neely  complains  that  the  court 
refused  to  dissolve  this  injunction.  His  counsel  says  there  was  no 
right  to  it,  as  the  bill  charged  no  insolvency.  The  bill,  however,  did 
charge  that  Neely  had  failed  to  contribute  his  part  of  the  expense  of 
the  business,  and  that  Ramey  and  Childers  had  made  large  outlays 
therefor,  and  that  Neely  had  refused  to  make  settlement,  and  was 
largely  indebted  to  his  associates  from  the  transactions  of  the  part- 
nership. This  justifies  the  injunction,  if  the  oil  of  Neely  were  so- 
cial assets,  as  partners,  in  advancing  for  expenditures  for  the  part- 
nership, have  a  lien  on  partnership  property  for  advances.  Skillman 
V.  Lachman,  83  Am.  Dec.  109;  Duryea  v.  Burt,  28  Cal.  570;  T.  Pars. 
Partn.  §  402,  note.  But  this  lien  is  only  on  partnership  property, 
while  distinctly  such ;  for  it  is  the  law  that  if  there  is  a  separation 
or  division  of  the  property,  or  part  of  it,  there  is  no  lien.    If  two 


MINING    PARTNERSHIPS.  759 

partners  consign  goods  for  sale,  and  direct  the  consignee  to  carry 
the  proceeds  to  the  account  of  each,  and  it  is  done,  neither  partner 
has  any  Hen  on  the  share  of  the  other  in  those  proceeds,  though  it 
would  have  been  otherwise  if  they  had  remained  part  of  the  common 
property.  2  Lindl.  Partn.  §  683 ;  i  Colly.  Partn.  §  108,  note.  Now, 
these  partners  agreed  to  have  division  orders  when  they  began  busi- 
ness (that  is,  the  pipe  lines  to  give  each  a  certificate  of  his  share  of 
the  oil  committed  to  them,  which  was  a  product  of  the  wells)  ;  and 
this  effected  a  separation  of  that  product,  making  each  one's  share 
his  several  property,  and  severing  it  from  the  social  property,  if  it 
was  such  at  any  moment.  There  being  no  lien,  there  was  no  justifi- 
cation for  the  injunction.  It  perhaps  disabled  Neely  from  paying  as 
the  bill  demanded  of  him. 

There  is  another  error  in  the  proceeding.  The  bill  demanded  a 
dissolution.  It  showed  abundant  cause,  and  the  evidence  shows 
abundant  cause,  of  dissolution.  *  *  *  A  receiver,  impartial  be- 
tween them,  was  proper,  under  the  circumstances.  "If  no  dissolu- 
tion is  sought,  a  receiver  and  manager  will  not  be  appointed ;  but, 
with  a  view  to  a  dissolution  or  winding  up,  a  receiver  and  manager 
will  be  appointed,  if  there  are  any  such  grounds  for  appointment  as 
are  proper  in  other  cases,  or  if  the  partners  cannot  agree  to  working 
the  mines  until  sold."  Colly  Partn.  §  381.-'  Therefore  we  dissolve 
the  injunction,  reverse  the  decree,  overrule  the  demurrer  to  the  bill, 
and  remand  for  further  proceedings  as  herein  indicated,  and  further 
according  to  principles  governing  courts  of  equity  in  such  cases. ^® 

"In  Dalliba  v.  Riggs,  7  Ida.  779,  82  Pac.  107,  it  was  laid  down  that  while 
a  court  of  equity  can  appoint  a  receiver  to  perfe.ct  and  preserve  mining  prop- 
erty, it  "has  no  authority  to  place  its  receiver  in  charge  of  such  property 
and  operate  the  same,  carrying  on  a  general  mining  business,  and  when  it 
turns  out  to  be  at  a  loss,  as  is  likely  to  be  the  result  in  such  cases,  charge 
the  same  up  as  a  preferred  claim  and  lien  against  the  property,  to  the  preju- 
dice and  loss  of  the  holders  of  prior  recorded  liens  on  the  same  property" 
(82  Pac.  at  pp.  108-109).  In  that  case  the  receiver  appeared  to  have  carried 
on  the  mining  operations  without  any  order  of  court  directing  him  to  do  so 
and  with  reckless  extravagance,  and  in  addition  was  shown  not  only  not  to 
have  kept  accurate  accounts  but  also  to  have  made  in  the  account  filed 
"many  charges  against  the  estate  where  no  charge  whatever  should  have 
been  made  and  none  in  fact  existed."  The  court  accordingly  denied  the 
receiver  any  allowance  for  his  own  time  or  services  and  any  allowance  for 
attorney's  fees. 

^  On  mining  partnership,  see  Costigan,  Mining  Law,  490-493.  See  also  on 
prospecting  or  grub-staking  contracts,  id.,  481-483.  A  grub-staking  contract 
does  not  make  a  partnership  unless  the  agreement  goes  beyond  the  mere  fur- 
nishing of  supplies  in  consideration  of  an  interest  in  the  claims  discovered. 
Costello  V.  Scott,  30  Nev.  43,  93  Pac.  1. 


CHAPTER  XII. 

RIGHTS   OF  ACCESS   ON    SEVERANCE   OF   SURFACE   FROM    MINERALS    AND 
RIGHTS   OF    SUBJACENT   AND   OF   LATEIL\L    SUPPORT. 

CHARTIERS  BLOCK  COAL  CO.  v.  MELLON  et  al. 

1893.     Supreme  Court  of  Pennsylvania. 
152  Pa.  St.  286,  25  Atl.  597. 

Bill  in  equity  by  the  Chartiers  Block  Coal  Company  against  W.  L. 
Mellon  and  others  for  an  injunction.  The  injunction  was  denied, 
and  plaintiff  appeals.    Affirmed. 

Paxson,  C.  J. — This  is  a  case  of  first  impressions,  and  of  very  grave 
importance,  and  in  view  of  these  facts  we  have  been  asked  to  ex- 
press our  opinion  of  the  law  bearing  upon  it,  notwithstanding  it  is  an 
appeal  from  a  decree  awarding  a  preliminary  injunction.  The  facts 
are  probably  as  fully  before  us  now  as  they  will  ever  be.  The  con- 
test arises  between  the  owner  of  the  surface  or  his  lessees  and  the 
Chartiers  Block  Coal  Company,  the  plaintiff  belov/  and  appellant, 
which  is  the  owner  in  fee  of  the  coal  beneath  the  surface.  The  com- 
pany purchased  the  coal  on  December  22,  1881,  and  the  deed  con- 
veying it  granted  not  only  all  the  coal,  but  also  the  mining  rights 
and  privileges,  including  the  right  to  enter  mines  and  carry  away  all 
the  coal ;  tlie  right  to  make  openings  or  entries,  air  courses,  water 
courses,  drainage,  and  shafts,  with  right  of  ingress  and  egress  for 
the  purpose  of  making  such  openings,  with  right  of  way  for  taking 
such  coal  or  any  other  coal  and  minerals  through  the  entries ;  and 
also  the  right  to  enter  upon  the  surface  of  the  land  for  the  purpose 
of  taking  into  and  placing  on  the  same  any  material  that  it  may 
desire  and  need  in  its  coal  operations ;  and,  when  making  entries  or 
shafts,  the  right  to  deposit  the  debris  and  slack  near  the  openings. 
The  grantor,  in  conveying  the  coal  with  these  privileges,  reserved 
to  himself  no  right,  privilege,  or  easement  in  said  coal,  or  any  part 
thereof,  and  no  right  of  way  through  said  coal  from  the  surface,  to 
obtain  gas  or  oil,  or  any  other  substance.  It  is  not  likely,  at  the  time 
the  grant  was  made,  that  it  occurred  either  to  the  grantor  or  the 
grantee  of  the  coal  that  underneath  the  latter  there  might  lie  an- 
other substance  of  perhaps  greater  value  than  the  subject  of  the 
grant  itself.  It  now  appears  that  the  coal  is  underlain  with  the  oil 
and  gas  bearing  sand,  which  can  only  be  reached  by  sinking  wells 

760 


SEVERANCE    AND    LATERAL    SUPPORT.  761 

from  the  surface  through  the  strata  of  coal.  Shortly  before  the  filing 
of  this  bill  it  began  to  be  known  that  oil  or  gas  existed  in  large 
quantities  in  that  part  of  Allegheny  county  where  the  appellant's 
works  are  situated,  and  active  operations  had  begun  in  the  early 
summer  of  1891  by  oil  operators,  to  obtain  this  oil  and  gas.  About 
this  time  the  surface  owner  made  leases  for  oil  and  gas  purposes, 
and  the  lessees  began  at  once  to  drill.  This  bill  was  then  filed  by  the 
appellant  company  for  the  purpose  of  obtaining  an  injunction  against 
the  defendants,  to  restrain  them  from  further  drilling  wells  then 
commenced,  and  from  drilling  any  other  well  or  wells  which  would 
pass  through  the  coal.  The  bill  was  filed  upon  the  allegation  and 
belief  that  the  defendants  had  no  right  whatever  to  drill  the  wells. 
The  plaintiff  company  also  claimed  that  it  was  impossible  for  such 
wells  to  be  drilled  in  such  a  manner  as  to  allow  the  removal  of  all 
the  coal  without  exposing  the  mine  to  leakage  from  gas  from  said 
wells,  and  rendering  the  mine  operations  so  hazardous  to  plaintiff's 
property  and  plaintiff's  employes  as  to  very  greatly  injure  and  de- 
preciate the  value  of  said  coal  property,  if  not  wholly  to  destroy  the 
value  thereof. 

The  case  was  heard  below  upon  bill,  answer,  and  affidavits.  The 
court,  as  we  understand  the  decree,  refused  to  grant  a  preliminary 
injunction  as  against  any  well  or  wells  on  said  tract  of  land  which 
at  the  date  of  the  decree  had  been  drilled  by  the  defendants  through 
the  Pittsburgh  vein  of  coal,  and  also  refused  to  enjoin  the  defend- 
ants from  drilling  wells  on  said  tract  at  any  place  or  places  where 
they  will  not  pass  through  said  Pittsburgh  vein  of  coal,  but  will  pass 
through  lower  strata  of  coal.  The  court  awarded  an  injunction,  how- 
ever, as  to  any  wells  not  already  drilled  which  would  pass  through 
the  Pittsburgh  vein,  and,  in  addition  to  the  ordinary  injunction  bond, 
the  decree  required  that  the  defendants  should  execute  and  deliver 
to  the  plaintiff  their  bond  in  the  sum  of  $10,000,  with  two  sureties  to 
be  approved  by  the  court,  conditioned  that  in  putting  down  and 
operating  any  wells  now  in  process  of  drilling,  or  which  may  here- 
after be  drilled  under  this  decree,  said  defendants  shall  protect  said 
coal  and  property  of  said  plaintiff,  and  also  the  plaintiff's  employes 
in  and  about  said  coal,  from  all  damages  by  reason  of  said  wells,  and 
that  they  will  use  the  best  methods,  devices,  and  appliances  in  the 
construction  and  operation  of  such  wells  ;  and  that  before  said  wells 
are  abandoned  they  shall  securely  plug  the  same  above  each  oil  and 
gas  bearing  sand.  Subsequently  the  decree  was  modified  so  as  to 
remove  the  injunction  from  the  two  wells  now  commenced,  but 
which  have  not  gone  down  through  the  Pittsburgh  coal  vein,  on  de- 
fendants' giving  bond  as  before  stated. 

The  learned  judge  below  justified  his  decision,  as  we  learn  from 
his  opinion  in  another  case  heard  before  him,  and  involving  substan- 
tially the  same  questions,  upon  the  ground  that  the  owner  of  the 
surface  has  a  right  of  way  by  necessity  through  the  coal  to  reach 


762  SEVERANCE    AND    LATERAL    SUPPORT. 

his  oil  and  gas  lying  beneath  it.  But  he  concedes  that  to  make  such 
right  available  it  would  require  a  large  modification  of  the  rules  in 
relation  to  a  right  of  way  by  necessity  over  the  surface.  "Yet,"  to 
use  his  own  language,  "my  present  impressions  are  that  it  can  and 
should  be  sustained  in  a  reasonable  manner,  having  due  regard  for 
the  interest  and  rights  of  both  parties.  But  it  cannot  be  permitted 
to  an  extent  that  will  destroy  the  grant  of  the  coal,  nor  even  to  seri- 
ously depreciate  it,  without  ample  compensation.  The  owner  of  the 
surface  cannot  bore  where  he  pleases,  nor  as  often  as  he  pleases. 
The  right  of  designating  the  reasonable  location  of  the  one  right  of 
way  by  necessity,  which  the  law  recognizes,  has  always  been  held 
to  be  in  the  owner  of  the  land.  If  he  refuses  to  designate  such 
way,  then  the  owner  of  the  right  of  way  can  designate  it,  or  can 
apply  to  the  court  to  have  it  located." 

This  is  a  new  question,  and  one  that  is  full  of  difficulty.  The  dis- 
covery of  new  sources  of  wealth,  and  the  springing  up  of  new  in- 
dustries which  were  never  dreamed  of  half  a  century  ago,  some- 
times present  questions  to  which  it  is  difficult  to  apply  the  law,  as 
it  has  heretofore  existed.  It  is  the  crowning  merit  of  the  common 
law,  however,  that  it  is  not  composed  of  ironclad  rules,  but  may  be 
modified  to  a  reasonable  extent  to  meet  new  questions  as  they  arise. 
This  may  be  called  the  "expansive  property  of  the  common  law." 
Mining  rights  are  peculiar,  and  exist  from  necessity,  and  the  neces- 
sity must  be  recognized,  and  the  rights  of  mine  and  land  owners 
adjusted  and  protected  accordingly.  We  have  an  illustration  of  this 
in  Coal  Co.  v.  Sanderson,  113  Pa.  St.  126,  6  Atl.  Rep.  453.  The 
mining  of  coal  and  other  minerals  is  constantly  developing  new 
questions.  Formerly  a  man  who  owned  the  surface  owned  it  to  the 
center  of  the  earth.  Now  the  surface  of  the  land  may  be  separated 
from  the  different  strata  underneath  it,  and  there  may  be  as  many 
different  owners  as  there  are  strata.  Lillibridge  v.  Coal  Co.,  143  Pa. 
St.  293,  22  Atl.  Rep.  1035.  The  difficulty  is  to  so  apply  the  law  as 
to  give  each  owner  the  right  of  enjoyment  of  his  property  or  strata 
without  impinging  upon  the  right  of  other  owners,  where  the  owner 
of  the  surface  has  neglected  to  guard  his  own  rights  in  the  deed  by 
which  he  granted  the  lower  strata  to  other  owners. 

In  the  earlier  days  of  the  common  law  the  attention  of  buyers  and 
sellers  and  therefore  the  attention  of  the  courts,  was  fixed  upon  the 
surface.  He  who  owned  the  surface  owned  all  that  grew  upon  it 
and  all  that  was  buried  beneath  it.  His  title  extended  upward  to  the 
clouds  and  downward  to  the  earth's  center.  The  value  of  his  estate 
lay,  however,  in  the  arable  qualities  of  the  surface,  and,  with  rare 
exceptions,  the  income  derived  from  it  was  the  result  of  agriculture. 
The  comparatively  recent  development  of  the  sciences  of  geology 
and  mineralog}%  and  the  multiplication  of  mechanical  devices  for 
penetrating  the  earth's  crust,  have  greatly  changed  the  uses  and  the 
values  of  lands.   Tracts  that  were  absolutely  valueless,  so  far  as  the 


SEVERANCE    AND    LATERAL    SUPPORT.  763 

surface  was  concerned,  have  come  to  be  worth  many  times  as  much 
per  acre  as  the  best  farming  lands  in  the  commonwealth,  because 
of  the  rich  deposits  of  coal,  or  iron,  or  oil,  or  gas  known  to  underlie 
them  at  various  depths.  These  deposits  are  sometimes  found,  how- 
ever, beneath  well-cultivated  farms,  so  that  the  surface  has  a  large 
market  value  apart  from  the  value  of  the  deposits  of  coal  or  other 
minerals  under  it.  In  such  cases  the  owner  is  rarely  able  to  utilize 
the  lower  stores  of  wealth  to  which  he  has  title,  by  mining  opera- 
tions conducted  by  himself,  and  for  this  reason  he  sells  them  to  some 
person  or  corporation  to  be  mined  and  to  be  moved.  So  it  often  hap- 
pens that  the  owner  of  a  farm  sells  the  land  to  one  man,  the  iron 
or  oil  or  gas  to  another,  giving  to  each  purchaser  a  deed  or  convey- 
ance in  fee  simple  for  his  particular  deposit  or  stratum,  while  he 
retains  the  surface  for  settlement  and  cultivation,  precisely  as  he 
held  it  before.  The  severance  is  complete  for  all  legal  and  practical 
purposes.  Each  of  the  separate  layers  or  strata  becomes  a  subject  of 
taxation,  of  incumbrance,  levy,  and  sale,  precisely  like  the  surface. 
As  against  the  owner  of  the  surface,  each  of  the  several  purchasers 
would  have  the  right,  without  any  express  words  of  grant  for  that 
purpose,  to  go  upon  the  surface  to  open  a  way  by  shaft,  or  drift, 
or  well,  to  his  underlying  estate,  and  to  occupy  so  much  of  the  sur- 
face, beyond  the  limits  of  his  shaft,  drift,  or  well,  as  might  be  neces- 
sary to  operate  his  estate,  and  to  remove  the  product  thereof.  This 
is  a  right  to  be  exercised  with  due  regard  to  the  owner  of  the  sur- 
face, and  its  exercise  will  be  restrained  within  proper  limits  by  a 
court  of  equity,  if  this  becomes  necessary;  but.  subject  to  this  limi- 
tation, it  is  a  right  growing  out  of  the  contract  of  sale,  the  position 
of  the  stratum  sold,  and  the  impossibility  of  reaching  it  in  any  other 
manner. 

So  far  our  way  is  clear  of  difficulty,  because  the  several  owners 
of  the  mineral  deposits  are  exercising  their  right  to  have  access  to 
their  respective  estates  against  their  vendor.  Our  question  is  over 
the  right  of  the  vendor  to  reach  strata  underlying  a  stratum  which 
he  has  conveyed  to  another.  Having  sold  the  coal  underlying  the 
surface,  is  he  to  be  forever  barred  from  reaching  his  estate  lying 
beneath  the  coal  ?  Prior  to  the  sale  of  the  coal,  his  estate,  as  before 
observed,  reached  from  the  heavens  to  the  center  of  the  earth.  With 
the  exception  of  the  coal,  his  estate  is  still  bounded  by  those  limits. 
It  is  impossible  for  him  to  reach  his  underlying  estate,  except  by 
puncturing  the  earth's  surface,  and  going  down  through  the  coal 
which  he  has  sold.  While  the  owner  of  the  coal  may  have  an  estate 
in  fee  therein,  it  is  at  the  same  time  an  estate  that  is  peculiar  in  its 
nature.  Much  of  the  confusion  of  thought  upon  this  subject  arises 
from  a  misapprehension  of  the  character  of  this  estate.  We  must 
regard  it  from  a  business,  as  well  as  a  legal,  standpoint.  The  grantee 
of  the  coal  owns  the  coal,  but  nothing  else,  save  the  right  of  access 
to  it,  and  the  right  to  take  it  away.   Practically  considered,  the  grant 


764  SEVERANCE   AND    LATERAL    SUPPORT. 

of  the  coal  is  the  grant  of  a  right  to  remove  it.  This  right  is  some- 
times Hmited  in  point  of  time ;  in  others  it  is  without  hmit.  In  either 
event,  it  is  the  grant  of  an  estate  determinable  upon  the  removal  of 
the  coal.  It  is,  moreover,  a  grant  of  an  estate  which  owes  a  servitude 
of  support  to  the  surface.  When  the  coal  is  all  removed,  the  estate 
ends,  for  the  plain  reason  that  the  subject  of  it  has  been  carried 
away.  The  space  it  occupied  reverts  to  the  grantor  by  operation  of 
law.  It  needs  no  reservation  in  the  deed,  because  it  was  never 
granted.  The  grantee  has  the  right  to  use  and  occupy  it  while  en- 
gaged in  the  removal  of  the  coal,  for  the  reason  that  such  use  is  es- 
sential to  the  enjoyment  of  the  grant.  It  cannot  be  seriously  con- 
tended that,  after  the  coal  is  removed,  the  owner  of  the  surface  may 
not  utilize  the  space  it  had  occupied  for  his  own  purposes,  either  for 
shafts  or  wells,  to  reach  the  underlying  strata.  The  most  that  can 
be  claimed  is  that,  pending  the  removal,  his  right  of  access  to  the 
lower  strata  is  suspended.  The  position  that  the  owner  of  the  coal 
is  also  the  owner  of  the  hole  from  which  it  has  been  removed,  and 
may  forever  prevent  the  surface  owner  from  reaching  underlying 
strata,  has  no  authority  in  reason,  nor,  do  I  think,  in  law.  The 
right  may  be  suspended  during  the  operation  of  the  removal  of  the 
coal  to  the  extent  of  preventing  any  wanton  interference  with  the 
coal  mining,  and  for  every  necessary  interference  with  it  the  surface 
owner  must  respond  in  damages.  The  owner  of  the  coal  must  so  en- 
joy his  own  rights  as  not  to  interfere  with  the  lawful  exercise  of  the 
rights  of  others  who  may  own  the  estate,  either  above  or  below  him. 
The  right  of  the  surface  owner  to  reach  his  estate  below  the  coal 
exists  at  all  times.  The  exercise  of  it  may  be  more  difficult  at  some 
times  than  at  others,  and  attended  with  both  trouble  and  expense. 
No  one  will  den}-  the  title  of  the  surface  owner  to  all  that  lies  be- 
neath the  strata  which  he  has  sold.  It  is  as  much  a  part  of  his  estate 
as  the  surface.  If  he  is  denied  the  means  of  access  to  it,  he  is  liter- 
ally deprived  of  an  estate  which  he  has  never  parted  with.  In  such 
case  the  public  might  be  debarred  the  use  of  the  hidden  treasures 
which  the  great  laboratory  of  nature  has  provided  for  man's  use  in 
the  bowels  of  the  earth.  Some  of  them,  at  least,  are  necessary  to  his 
comfort.  Coal,  oil,  gas,  and  iron  are  absolutely  essential  to  our 
common  comfort  and  prosperity.  To  place  them  beyond  the  reach 
of  the  public  would  be  a  great  public  wrong.  Abounding,  as  our 
state  does,  with  these  mineral  treasures,  so  essential  to  our  common 
prosperity,  the  question  we  are  considering  becomes  of  a  quasi 
public  character.  It  is  not  to  be  treated  as  a  mere  contest  between 
A.  and  B.  over  a  little  corner  of  earth.  We  have  already  seen  that, 
when  the  owner  of  the  surface  parted  with  the  underlying  coal,  he 
parted  with  nothing  but  the  coal.  He  gave  no  title  to  any  of  the 
strata  underlying  it,  and  it  is  not  to  be  supposed  for  a  moment  that 
the  grantor  parted  with  or  intended  to  part  with  his  right  of  access 
to  it.   We  are  of  opinion  that  he  has  such  right  of  access.    The  only 


SEVERANCE    AND    LATERAL    SUPPORT.  765 

question  is  how  that  right  shall  be  exercised,  by  what  authority,  and 
under  what  limitations. 

While  there  is  some  analogy  between  such  right  and  the  common- 
law  right  of  way  of  necessity  over  the  surface,  we  quite  agree  with 
the  learned  judge  below  that  it  would  require  a  large  modification 
of  the  common-law  rule.  We  do  not  see  our  way  clear  to  apply  the 
doctrine  of  a  surface  right  of  way  of  necessity  to  the  facts  of  this 
case.  While  the  right  of  the  surface  owner  to  reach  in  some  way  his 
underlying  strata  is  conceded,  it  involves  too  many  questions  affect- 
ing the  rights  of  property,  and  of  injury  to  the  underlying  strata, 
to  be  settled  by  the  judiciary.  It  is  a  legislative,  rather  than  a  ju- 
dicial, question.  It  needs  and  should  promptly  receive  the  inter- 
position of  the  legislative  authority.  That  body  is  now  in  session, 
and  we  have  no  doubt  its  wisdom  will  enable  it  to  dispose  of  this 
somewhat  difficult  question  in  such  manner  as  to  protect  the  rights 
of  the  surface  owner,  and  yet  do  no  violence  to  the  rights  of  others 
to  whom  he  has  sold  one  or  more  of  the  underlying  strata.  With  the 
right  conceded,  there  can  be  no  serious  difficulty  in  the  lawmaking 
power  affording  a  proper  remedy.  That  remedy  should  be  carefully 
guarded.  The  owner  of  the  underlying  strata  should  not  be  per- 
mitted at  his  mere  will  and  pleasure  to  interfere  with  strata  lying 
above  him.  All  this  requires  an  amount  of  legal  machinery  that  a 
court  of  equity  cannot  supply,  however  wide  its  jurisdiction  and 
plastic  its  process.  In  all  such  cases  there  should  be  a  petition  to 
the  court,  and  a  decree  regulating  the  mode  of  exercise  of  the  right. 
There  should  also  be  a  provision  for  the  appointment  of  a  jury  of 
view  to  assess  the  damages.  In  this  way  the  rights  of  the  surface 
owner  can  be  preserved  without  any  wrong  to  the  owner  of  the  coal. 

While  we  do  not  fully  sustain  the  reasons  given  by  the  learned 
judge  below,  we  will  not  interfere  with  this  decree  for  another  rea- 
son. The  plaintiff'  company  has  not  yet  sustained  any  irreparable 
injury  by  reason  of  the  sinking  of  these  wells,  and  it  may  never 
do  so.  We  find  ourselves  upon  a  new  road,  without  chart  or  com- 
pass to  guide  us,  and  we  propose  to  move  slowly.  The  appellants 
have  appealed  to  us  as  chancellors,  and,  even  if  Ave  concede  their 
right  to  be  clear,  it  does  not  follow  that,  as  chancellors,  we  will 
enforce  it.  The  effect  of  doing  so  would  be  to  leave  the  owner  of 
the  surface  at  the  absolute  mercy  of  the  owner  of  the  coal.  It  is  true, 
he  can  buy  the  coal  of  the  latter,  but  only  on  the  terms  dictated  by 
the  owner.  To  grant  the  injunction  as  claimed  by  the  appellant 
would  be  to  destroy  the  estate  of  the  surface  owner  in  the  minerals 
below  the  coal.  If  this  were  the  only  case  of  the  kind  in  the  state, 
we  might  perhaps  modify  our  views  to  some  extent,  but  when  we 
reflect  upon  the  fact  that  many  other  similar  cases  exist,  and  that  a 
vast  quantity  of  the  leased  coal  lands  in  the  western  part  of  the 
state  are  underlain  with  oil  and  gas,  precisely  as  in  the  case  in  hand, 
we  cannot  close  our  eyes  to  the  fact  that  vast  interests  may  be  af- 


766  SEVERANCE   AND    LATERAL    SUPPORT. 

fected  by  our  decree,  and  great  injury  done  to  the  rights  of  others. 
It  is  familiar  law — too  familiar  to  need  the  citation  of  authority — 
that  the  decree  of  a  chancellor  is  of  grace,  not  of  right,  and  that  he 
is  not  bound  to  make  a  decree  which  will  do  far  more  mischief,  and 
work  far  greater  injury,  than  the  wrong  which  he  was  asked  to  re- 
dress. For  these  reasons  we  will  not  disturb  the  decree  of  the  court 
below.  The  appellant  company  has  its  remedy  at  law,  and  to  that 
we  will  remit  it.  The  decree  is  affirmed,  and  the  appeal  dismissed, 
at  the  costs  of  the  appellant. 

Williams,  J. — I  concur  in  the  decree  made  in  this  case,  and  in 
the  opinion  which  so  ably  vindicates  it,  but  I  would  go  further.  I 
would  lay  down  the  broad  proposition  that  the  several  layers  of 
strata  composing  the  earth's  crust  are,  by  virtue  of  their  order  and 
arrangement,  subject  to  reciprocal  servitudes;  and,  as  these  are  im- 
posed by  the  laws  of  nature,  and  are  indispensable  to  the  preserva- 
tion and  enjoyment  of  the  several  layers  or  strata  to  and  from  which 
they  are  due,  the  courts  should  recognize  and  enforce  them.  When 
the  servitude  is  the  result  of  natural  forces  affecting  the  conforma- 
tion of  the  surface,  the  courts  have  taken  notice  of  it,  and  enforced 
it  for  and  against  adjoining  owners.  Thus,  the  owner  of  land  crossed 
by  a  stream  has  a  right,  as  against  the  owner  above  him,  to  insist 
on  the  delivery  of  the  stream  to  him  within  its  natural  channel,  and 
he  is  in  turn  bound  to  receive  it  from  such  upper  owner.  He  is  un- 
der a  like  duty  to  deliver  it  to  the  owner  below  him,  and  has  a  like 
right  to  insist  that  such  owner  shall  receive  it  from  him.  The  true 
foundation  on  which  the  relative  rights  and  duties  of  these  several 
owners  must  rest  is  not  found  in  the  order  of  their  respective  pur- 
chases, nor  in  the  terms  of  the  conveyances  under  which  they  take 
title.  It  is  not  found  in  any  statute  regulating  the  flow  of  streams 
or  the  duties  of  riparian  owners.  It  is  found  in  the  character  of  the 
surface  over  which  the  stream  flows,  and  the  operation  of  the  laws 
of  gravity  upon  the  water  of  the  stream.  A  purchaser  of  land  is 
bound  to  take  notice  of  its  situation,  and  is  conclusively  presumed 
to  have  bought  with  full  knowledge  of,  and  in  subordination  to,  the 
servitude  which  that  situation  imposes.  But  the  relation  of  succes- 
sive farms  along  the  course  of  a  stream  is  no  more  clearly  due  to 
the  forces  of  nature  than  are  the  order  and  position  of  the  rocks 
and  minerals  which  comprise  the  earth's  crust.  One  who  buys  a 
single  stratum  is  bound  to  know  where  it  is,  and  how  it  is  situated 
with  reference  to  the  strata  above  and  below  it ;  and  he  must  be  con- 
clusively presumed  to  have  taken  title  subject  to  the  servitudes  im- 
posed by  nature  upon  it  as  the  necessary  consequence  of  its  position 
among  the  rocks  that  underlie  the  surface.  He  knows  that  his 
stratum  lies  upon  and  is  supported  by  the  rocks  below  it,  and  that 
other  rocks  lie  upon  and  are  supported  by  his  stratum.  He  knows 
that  his  estate  can  only  be  reached  by  passing  through  the  strata  that 
overlie  it,  and  that  the  estates  below  him  can  only  be  reached  by 


SEVERANCE    AND    LATERAL    SUPPORT.  ^6^ 

passing  through  his.  This  necessity  is  not  the  result  of  any  act  of 
his,  or  of  his  vendor,  but  of  the  relation  the  several  strata  bear  to 
each  other  as  arranged  in  their  order  by  the  forces  of  nature.  They 
are  to  each  other  the  reciprocal  obligations  of  access  and  support. 
The  lower  can  only  be  reached  through  the  upper ;  the  upper  can 
only  be  supported  by  the  lower.  The  courts  have  long  recognized 
the  servitude  for  support,  and  in  a  multitude  of  cases  on  both  sides 
of  the  Atlantic  have  compelled  its  observance  and  punished  its  neg- 
lect. They  have  enforced  the  right  to  support  as  one  existing  inde- 
pendently of,  and  requiring  no  aid  from,  statutes  or  contracts,  and 
as  resting  on  the  order  of  creative  work  and  the  laws  of  nature. 
This  right  may  be  waived  by  the  owner  of  the  surface,  (Penn  Gas 
Coal  Co.  V.  Versailles  Fuel  Gas  Co.,  131  Pa.  St.  522,  19  Atl.  Rep. 
933)  but,  if  not  waived,  the  owner  of  the  lower  stratum  cannot  es- 
cape its  obligation.  But  the  necessity  for  access  results  from  the 
work  of  nature  just  as  truly  as  the  necessity  for  support.  Both  must 
be  had  in  nature's  way,  or  not  had  at  all.  Take  away  the  servitude 
for  support,  and  the  surface  may  be  made  unsafe  for  either  residence 
or  cultivation,  and  so  become  valueless.  Take  the  servitude  for  ac- 
cess which  the  natural  arrangement  of  the  stratified  rocks  imposes 
upon  the  surface,  and  the  mineral  deposits  in  them  are  inaccessible, 
and  therefore  useless.  Recognize  these  reciprocal  servitudes,  and  the 
value  of  the  surface  is  preserved,  while  the  mineral  deposits  are  made 
accessible,  and  made  to  minister  to  the  comfort  and  advancement  of 
the  race.  They  rest  on  the  same  foundation.  To  change  the  figure, 
they  may  be  said  to  be  the  obverse  and  the  reverse  of  the  same  coin. 
They  are  due  from  and  due  to  every  layer  of  the  earth's  crust  in 
succession,  from  the  surface  to  the  center,  because  of  the  relation 
these  layers  hold  to  each  other  in  the  order  of  their  creation.  We 
do  not  hesitate  to  enforce  the  servitude  for  support,  whether  sub- 
jacent or  adjacent,  or  to  regulate  the  exteint  and  manner  in  which  it 
shall  be  rendered  and  enjoyed.  With  equal  propriety  and  with  equal 
ease  we  may  enforce  the  servitude  for  access,  and  regulate  the  extent 
and  manner  in  which  it  shall  be  rendered  and  enjoyed.  The  power 
of  the  chancellor  would  extend  to  all  incidental  subjects,  and  enable 
him  to  impose  terms  as  to  the  manner  in  which  an  owner  of  the 
lower  estate  should  exercise  his  right  of  access,  the  precautions  he 
should  employ,  and  the  compensation  he  should  make  for  actual  in- 
jury done.  It  is  interesting  to  note  how  generally  business  men  en- 
gaged in  developing  the  mineral  resources  of  the  state  have  recog- 
nized this  right  of  access,  and  interposed  no  obstacle  in  the  way  of 
its  exercise.  I  have  before  me,  as  I  write,  the  estimate  of  well-in- 
formed producers  and  dealers,  thoroughly  familiar  with  the  several 
oil  fields  in  the  state,  and  identified  with  the  business  from  the  early 
developments  on  Oil  creek,  30  years  ago,  to  the  present  time.  This 
estimate  fixes  the  total  number  of  oil  wells  drilled  in  Pennsylvania 
at  about  60,000,  exclusive  of  wells  drilled  in  localities  known  to  pro- 


^68  SEVERANCE   AND    LATERAL    SUPPORT. 

duce  only  gas.  Three  fourths  of  the  whole  number  are  within  the 
limits  of  the  carboniferous  measures,  and  one  half  have  penetrated 
workable  veins  of  coal.  During  these  30  years  of  active  operations 
the  question  of  the  right  of  access  to  the  sand  rocks  in  which  the  oil 
is  found  has  never  before  reached  this  court.  This  cannot  be  ac- 
counted for  except  upon  the  theory  of  the  general  concession  of  the 
right  by  all  parties  concerned  in  the  ownership  of  the  coal  and  in  the 
operations  of  mining.  The  magnitude  of  the  business,  and  the  im- 
portance of  this  question,  will  be  evident  when  it  is  remembered  that 
these  wells  have  had  an  average  cost  of  about  $4,000  each  before 
oil  could  be  secured  from  them,  and  a  total  cost  of  $240,000,000. 
The  actual  production  of  oil  has  ranged  from  4,000  barrels  per  day 
30  years  ago,  to  110,000  barrels  per  day.  It  is  now  standing  at  not 
far  from  60,000  barrels.  The  price  has  fluctuated  between  50  cents 
per  barrel  and  $3.  A  conservative  estimate  of  the  production — total 
production — places  it  about  560,000,000  of  barrels,  with  an  average 
value  of  not  less  than  $1  per  barrel  in  its  crude  state.  For  20  years 
the  northern  oil  field  was  within  and  immediately  adjoining  the 
judicial  district  in  which  I  presided,  and  I  never  heard  of  an  acci- 
dent in  a  coal  mine  that  was  charged  upon,  or  that  could  be  traced 
directly  or  indirectly  to,  the  wells  that  penetrated  the  coal,  or  to  the 
escape  of  oil  or  gas  from  them  into  the  coal  or  the  mined-out  open- 
ings from  which  the  coal  had  been  taken.  The  manner  in  which 
wells  are  cased  and  tubed  renders  the  possibility  of  such  escape  so 
remote  as  to  reduce  the  risk  of  accident  to  proportions  that  are  prac- 
tically insignificant.  But  if  the  risk  was  much  greater  it  could  be 
provided  for  by  requiring  additional  precautions  to  be  taken,  and 
security  to  be  given  for  the  reimbursement  of  the  owner  of  the  inter- 
mediate estate  for  any  loss  he  might  sustain.  As  it  now  stands,  the 
decree  of  this  court  recognizes  the  existence  of  a  right  of  access  ex- 
isting in  the  nature  of  things,  wholly  independent  of  all  statutory 
enactments,  and  yet  refuses  to  enforce  that  right,  or  regulate  its  ex- 
ercise. It  says  to  the  owner  of  the  lower  estate :  "You  have  an  un- 
doubted right  of  access  to  the  layer  of  the  earth's  crust  in  which 
your  wealth  lies,  but  equity  will  not  protect  or  aid  you  in  its  exer- 
cise. The  owner  of  the  intermediate  stratum  may  sue  you,  and  re- 
cover damages  from  you,  for  doing  what  it  is  your  right  to  do,  and 
a  chancellor  cannot  hear  your  complaint,  or  lift  his  hands  to  protect 
you,  until  the  legislature  has  provided  him  with  ears  and  hands  for 
that  purpose."  I  would  hold  that  the  jurisdiction  is  as  clear  as  the 
right  of  access ;  that  the  parties  are  in  a  court  competent  to  deal  with 
the  whole  subject ;  and  that  the  decree  of  the  court  should  be  af- 
firmed for  that  reason,  and  at  the  costs  of  the  appellant. 


SEVERANCE   AND    LATERAL   SUPPORT.  769 

NOONAN  V.  PARDEE. 

1901.     Supreme  Court  of  Pennsylvania. 
200  Pa.  474,  50  Atl.  255. 

Action  by  Michael  Noonan  against  Calvin  Pardee,  administrator. 
Judgment  for  plaintiff.   Defendant  appeals.   Reversed. 

Dean,  J. — The  plaintiff  purchased  a  lot  by  deed  of  April  22,  1890, 
in  the  borough  of  Hazleton,  Luzerne  county,  and  erected  upon  it  a 
dwelling  house.  While  he  occupied  the  house,  on  the  nth  of  Janu- 
ary, 1892,  the  ground  under  it  and  in  the  neighborhood  svibsided, 
leaving  a  saucer-like  depression  about  three  feet  deep  in  the  middle, 
and  extending  over  about  two  acres.  The  subsidence  or  cave-in  was 
caused  by  the  mining  of  coal  by  the  defendant,  or  his  predecessors, 
under  the  subsided  land ;  whether  immediately  under  plaintiff's  lot 
or  at  some  distance  is  in  dispute  on  the  evidence.  It  is  also  in  dis- 
pute as  to  the  time  the  mining  was  done  which  caused  the  immedi- 
ate injury.  The  plaintift"s  deed  was  from  one  McAllister,  whose 
title  ran  back  through  several  grantors  to  one  Michael  Dugan,  the 
last-named  grantee's  deed  being  from  the  Lehigh  Valley  Railroad 
Company,  and  is  dated  July  31,^1869.  At  that  date  the  company  was 
owner  of  both  the  surface  and  the  coal  underneath.  In  the  deed  is 
this  provision  :  "And  it  is  hereby  made  a  condition  of  this  grant,  and 
expressly  covenanted  and  agreed,  that  the  said  Lehigh  Valley  Rail- 
road Company,  their  successors  and  assigns,  do  except  and  reserve, 
and  shall  always  possess,  the  exclusive  privilege  of  mining  under  the 
lot  of  land  herein  conveyed  for  coal  and  other  minerals,  and  for  that 
purpose  may  extend  such  tunnels,  drifts,  or  excavations  under  the 
same,  or  any  part  thereof,  as  shall  be  necessary  or  convenient  for 
the  mining  and  removal  of  such  coal  or  other  minerals,  subject  to  the 
condition  that  the  surface  earth  covering  such  coal  or  other  minerals 
shall  not  be  in  any  manner  cut,  broken,  or  displaced ;  and  that  every 
damage  which  may  be  done  to  the  said  lot,  or  the  buildings  erected 
thereon,  by  the  exercise  of  the  mining  privileges  herein  reserved, 
shall  be  made  good  by  the  said  Lehigh  Valley  Coal  Company."  The 
defendant's  testator  had,  about  the  year  1874,  become  the  lessee  of 
the  coal  from  the  Lehigh  Valley  Railroad  Company.  It  will  be  no- 
ticed this  was  manv  years  before  the  plaintiff's  conveyance  of  April 
22,  1890.  At  the  date  of  the  injury,  defendant  was  in  possession 
of  and  operating  the  mines.  We  do 'not  think  the  stipulation  in  the 
railroad  company's  deed,  so  far  as  the  evidence  in  this  case  is  con- 
cerned, modified  the  defendant's  liabiHty  as  an  operator  or  miner  of 
the  coal  underneath  the  surface.  The  covenant  in  the  deed  neither 
expressly  nor  impliedly  relieved  the  covenantor,  or  its  lessees,  from 
the  duty  of  leaving  sufficient  support  for  the  surface.  It  is  little 
more  than  a  reservation  of  the  coal  for  itself  and  assigns,  and  a 

49 — Mining  Law 


770  SEVERANCE   AND    LATERAL    SUPPORT. 

stipulation  for  the  performance  of  a  common-law  duty  on  its  part 
and  that  of  its  assigns.  There  was  evidence  that  the  mining-  which 
caused  the  injury  had  been  done  directly  underneath  the  plaintiff's 
lot  many  years  before  the  date  of  his  deed,  and  that  none  was  done 
afterwards;  and  there  was  evidence  on  the  part  of  the  plaintiff  that 
considerable  mining  had  been  done  underneath  after  their  occupa- 
tion. In  both  aspects  of  it,  this  evidence  had  a  direct  bearing  on  the 
issue  as  made  up  by  the  pleading.  The  suit  was  trespass  against  the 
lessee  of  the  railroad  company. 

The  declaration  is  as  follows:  '*On  the  nth  of  January,  A.  D. 
1892,  the  said  defendants,  under  a  grant  of  coal  under  said  lot,  said 
grant  being  made  subsequent  to  the  deed  from  said  company  to  said 
Dugan,  removed  the  coal  under  the  surface  earth  of  said  lot  No.  9, 
and  so  cut,  broke,  and  displaced  the  earth  that  the  surface  fell  in, 
and  the  dwelling  house  of  the  plaintiff  thereon  became  greatly  dam- 
aged, whereby  the  surface  of  said  lot  No.  9,  of  the  value  of  $1,500, 
was  wholly  destroyed,  and  the  house  diereon  damaged  in  $3,000; 
wherefore  plaintiff"  claims  from  defendant  $4,500."  The  injury,  and 
only  injury,  here  alleged  is  that  defendant  removed  the  coal  under 
the  surface  of  lot  No.  9,  and  to  that  averment  only  did  the  defendant 
plead.  He  averred  and  argued  that  no  mining  had  been  done  by  him 
after  the  plaintiff"s  purchase  and  occupation  of  lot  No.  9;  yet  the 
latter  was  permitted  to  recover  on  evidence  showing  a  removal  of 
the  coal  antedating  his  deed, — a  fact  not  averred.  If  the  cause  of  the 
injury  was  bad  mining  before  the  nth  of  January,  1892,  or  the  fail- 
ure before  that  date  of  defendant,  while  mining,  to  leave  sufficient 
props  and  supports  for  the  surface,  while  the  cave-in  only  occurred 
at  that  date,  those  who  mined  the  coal  would  be  clearly  answerable. 
In  this  case  it  is  alleged  this  defendant  mined  the  coal  either  before 
or  after  the  plaintiff's  deed.  If  the  mining  which  caused  the  subsi- 
dence was  more  than  six  years  before  suit  brought,  and  the  injury 
occurred  wdthin  six  years,  even  though  the  miner  or  operator  was 
still  in  possession,  he  is  not  answerable  in  damages,  for  there  is  no 
right  of  action  for  damages  until  the  damage  occurs. 

The  first  question  raised  by  the  assignments  of  error  is,  what  was 
the  date  of  the  cause  of  action  ?  A  cause  of  action  is  that  which  pro- 
duces or  effects  the  result  complained  of.  Where  there  has  been  a 
horizontal  division  of  the  land,  the  owner  of  the  subjacent  estate, 
coal  or  other  mineral,  owes  to  the  superincumbent  owner  a  right  of 
support.  This  is  an  absolute  right  arising  out  of  the  ownership  of 
the  surface.  Good  or  bad  mining  in  no  way  affects  the  responsi- 
bility. What  the  surface  owner  has  a  right  to  demand  is  sufficient 
support,  even,  if  to  that  end,  it  be  necessary  to  leave  every  pound  of 
coal  untouched  under  his  land.  Berwind  v.  Barnes,  13  Wkly.  Notes 
Cas.  541.  Also  the  English  case,  Harris  v.  Ryding,  5  Mees.  &  W.  60, 
in  which  Baron  Parke  uses  this  language:  "T  do  not  mean  to  say 
that  all  the  coal  does  not  belong  to  the  defendants,  but  that  they 


SEVERANCE    AND    LATERAL    SUPPORT.  7/1 

cannot  get  it  without  leaving  sufficient  support."  We  have  followed 
rigidly  this  rule,  as  thus  tersely  suggested,  in  all  our  decisions  on  the 
subject,  and  they  have  been  many.  Of  course,  defendant  had  a  right 
to  all  the  coal  under  this  lot,  but  he  had  no  right  to  take  any  of  it,  if 
thereby,  necessarily,  the  surface  caved  in.  The  measure  of  his  en- 
joyment of  his  right  must  be  determined  by  the  measure  of  his  ab- 
solute duty  to  the  owner  of  the  surface.  So  there  is  nothing  gained 
by  adducing  evidence  of  good  or  bad  mining,  or  by  a  discussion  of 
that  subject.  The  subjacent  owner  in  this  case  at  some  time  failed 
in  duty  to  the  owner  of  the  surface  of  this  lot.  The  mere  fact  that 
it  caved  in  because  the  coal  had  been  mined  underneath  demon- 
strates this  failure.  When  the  coal  was  removed  without  leaving 
sufficient  pillars,  or  without  supplying  sufficient  artificial  props,  w^as 
the  time  when  the  subjacent  owner  failed  in  an  absolute  duty  he  owed 
to  his  neighbor  above.  And  from  that  dates  the  cause  of  action.  Un- 
less, when  the  coal  was  mined,  the  miner  left  no  pillars,  or  too  few, 
or  of  too  small  dimensions  for  such  a  mine,  or  did  not  replace  the 
coal  with  ample  artificial  durable  props,  there  was  no  cause  of  ac- 
tion; for,  as  is  said  by  Erie,  J.,  in  Bonomi  v.  Backhouse,  96  E.  C. 
L.  642 :  "As  a  general  principle,  it  is  difficult  to  conceive  a  cause  of 
action  from  damage  when  no  right  has  been  violated  and  no  wrong 
has  been  done."  That  was  also  a  mining  case.  It  was  held  that  the 
check  upon  mining  was  for  the  protection  of  the  surface,  and  that 
"the  surface  owner,  taking  that  advantage,  may  not  unreasonably  be 
held  to  take  it  with  ordinary  legal  incidents ;  among  others,  a  lia- 
bility to  be  barred  by  six  years  from  the  wrongful  act.  In  case  of 
mining  operations  which  are  a  trespass,  the  statute  runs  from  the 
trespass,  though  the  party  may  have  been  ignorant  of  the  act  done. 
The  same  rule  may,  with  equal  justice,  apply  to  a  surface  owner 
notwithstanding  he  may  have  been  ignorant  of  the  violation  of  his 
right  to  support."  This  opinion  was  concurred  in  by  the  other  two 
justices,  Campbell  and  Coleridge,  but  on  appeal  to  the  house  of 
lords,  the  judgment  w^as  reversed ;  so  in  that  case  the  final  judgment, 
in  effect,  declared  that  the  date  of  the  cave-in  was  the  date  from 
W'hich  the  statute  began  to  run.  There  are  other  English  cases  to  the 
same  effect,  and  others  directly  to  the  contrary.  So  conflicting  are 
the  decisions  that  the  law  on  the  subject  in  England  cannot  be  con- 
sidered settled.  Cases  on  each  side,  including  Bonomi  v.  Backhouse, 
have  here  been  cited  by  both  appellant  and  appellee.  We  think  the 
opinion  of  Erie,  J.,  from  which  we  have  quoted,  by  far  the  most 
satisfactory  in  its  reasons,  and  more  in  accord  with  the  conditions 
of  coal  mining  in  this  country ;  and,  as  we  are  not  bound  by  the  final 
judgment  in  the  law  of  England,  we  prefer  to  follow  the  opinion 
W'hich  meets  our  view  of  the  law  applicable  to  the  facts  before  us. 
This  covirt  refused  to  follow  Bonomi  v.  Backhouse  in  the  late  case 
of  Lewey  v.  Coke  Co.,  166  Pa.  536,  31  Atl.  261,  28  L.  R.  A.  283,  45 
Am.  St.  Rep.  684.    But  this  last  case  is  clearly  distinguishable  from 


772  SEVERANCE   AND    LATERAL    SUPPORT. 

an  action  for  failure  to  afford  the  surface  sufficient  support.   Lewey 
V.  Coke  Co.  was  where  the  defendant  from  an  adjoining;-  mine  had 
mined  and  removed  the  plaintiff's  coal  underneath  his  land,  yet  did 
not  disclose  the  fact,  and  plaintiff  did  not  discover  it  until  after  the 
six  years  had  run.   We  held,  on  the  facts  of  that  case,  that  the  statute 
only  began  to  run  from  the  time  of  plaintiff's  discovery,  and  this  on 
the  grounds  that  the  mining  of  his  coal  was  a  wrong,  and  the  con- 
cealment of  the  wrong  a  fraud.   He  had  no  means  of  discovery ;  had 
no  right  of  access  to  the  mine  to  make  observations,  and  defendant 
no  right  at  all  under  his  land ;  he  had  no  reason  to  suspect  or  pre- 
sume that  one  who  had  no  claim  of  right  would  wrongfully  enter  on 
his  land,  and  dig  his  coal.    But  here  the  parties  who  mined  this  coal 
had  a  right  so  to  do ;  a  right  reserved  by  the  original  owner.    The 
surface  owner,  too,  had  a  right  of  sufficient  support.    These  mutual 
rights  gave  the  surface  owner  access  to  the  mine  to  see  that  his 
right  was  being  maintained  by  the  performance  of  the  duty  owing  to 
him  by  the  coal  operator.    And  the  courts  will  enforce  this  right  of 
access  if  the  mine  operator  denies  it.    This  has  been  decided  in  a 
number  of  cases.    In  this  case  the  right  of  action  arose  when  the 
mine  operator  failed  to  furnish  sufficient  sup])ort.    That  may  have 
been  more  than  six  years  before  suit  brought,  or  it  may  not.   It  may 
have  been  partly  due  to  mining  before  and  partly  to  mining  after- 
wards ;  in  which  latter  case  the  action  would  not  be  bared.   If  wholly 
due  to  the  removal  of  coal  six  years  before  suit  brought,  and  failure 
then  to  leave  sufficient  support,  the  action  would  be  barred.    The 
date  of  the  cave-in  and  partial  destruction  of  the  house  is  not  the 
date  of  the  cause  of  action  that  was  only  the  consequence  of  a  pre- 
vious cause,  whether  one  month  or  twenty  years  before.   It  is  argued 
that  in  some  cases  the  surface  owner  could  not  know  by  the  most 
careful  observation  whether  the  mine  owner  had  neglected  his  duty 
within  six  years.    We  answer,  that  is  only  one  of  the  incidents  at- 
tending the  purchase  of  land  over  coal  mines.    It  is  not  improbable 
that  this  risk  enters  largely  into  the  commercial  value  of  all  like 
surface  land  in  that  region.   But,  however  this  may  be,  we  hold  that 
the  miner  is  not  forever  answerable  for  even  his  own  default.    Fur- 
ther, in  no  case  is  he  answerable  for  the  default  of  his  predecessor 
in  possession.    Neither  equity  nor  law  demands  that  any  greater 
burden  should  be  placed  upon  him  than  that  indicated.   Any  heavier 
one  would  encourage  the  purchase  of  surface  over  coal  mines  for 
speculation  in  future  lawsuits.    We  cannot  concur  in  the  argument 
of  appellant's  counsel  that  plaintiffs  could  have  had  no  cause  of  ac- 
tion antedating  their  deed.    By  their  conveyance,  there  passed  to 
them  all  the  rights  of  their  grantor.    If  the  cause  of  the  injury  was 
within  six  years,  although  a"t  the  date  of  the  deed  the  damage  was 
not  susceptible  of  computation,  yet  afterwards  became  so  by  the 
subsidence  of  the  surface,  their  right  to  sue  was  then  fixed ;  a  right 
which,  from  the  nature  of  the  case,  could  not  have  had  more  than  a 


SEVERANCE    AND    LATERAL    SUPPORT.  773 

doubtful  existence  before  the  actual  damage  occurred.    We  do  not 
think  Road  Co.  v.  Brosi,  22  Pa.  32,  cited  to  sustain  the  argument 
that  the  right  to  sue  does  not  fall  to  the  owner  who  is  in  possession 
when  the  result  demonstrates  the  cause  of  action  arose  before  the 
date  of  his  deed,  is  in  point.    Justice  Lewis,  in  that  case,  says :    "It 
is  certainly  true  that  the  purchaser  of  an  estate  cannot  clairn  dam- 
ages for  an  injury  done  to  it  before  his  purchase.    Such  claim  is  a 
chose  in  action,  which  remains  in  the  hands  of  the  vendor.   The  ven- 
dee is  presumed  to  pay  less  for  his  estate  on  account  of  the  injury, 
and  has,  therefore,  no'  claim  to  recover  damages  for  it."    But  he  is 
speaking  there  of  the  damages  arising  from  the  exercise  of  eminent 
domain' by  turnpike  and  railroad  companies.    In  all  such  cases  the 
injury  is  palpable.    When  the  corporation  enters  upon  the  land,  and 
makes  its  survey,  it  then  appropriates.   The  extent  of  its  excavations 
and  embankments,  as  well  as  the  quantity  of  land  to  be  occupied, 
are  as  well  known  then  as  months  afterwards,  when  the  work  is 
done.  There  is  no  reason  why  the  grantee  of  the  land,  in  the  interval 
between  the  appropriation  and  the  completion  of  the  work,  should  be 
compensated  in  damages,  when  he  has  probably  gained  a  reduction 
in  price,  because  of  the  damage,  equal  to  the  amount  of  damage. 
lUtt  none  of  these  reasons  appear  in  this  class  of  cases.    When  the 
right  to  sufficient  support  has  been  violated,  the  cause  of  action,  it 
is  true,  arises,  but  the  owner  in  possession  when  the  consequences 
follow  is  the  one  who  suffers.  There  may,  in  the  interval,  have  been 
several  owners,  none  of  whom  sustained  damage  except  the  last.   He 
alone  has  the  right  to  sue,  because  to  him  only  has  passed  the  right 
to  enforce  by  suit  the  collection  of  a  damage  occurring  during  his 
possession.  Until  they  actuallv  occur,  no  one  can  tell  when  they  will 
occur,  or  that  they  ever  will.    Each  grantee  has  the  right  to  presume 
that  the  subjacent  owner  has  performed  his  legal  duty;   and  the 
price,  while  probably  somewhat  depreciated  by  the  possible  risk,  is 
not  fixed  on  a  presumption  that  his  land  will  subside  because  of  any 
special  failure  in  duty  on  the  part  of  him  who  has  taken  out  the  coal. 
There  is  some  evidence  tending  to  show  that  the  cave-in  was  be- 
cause of  work  within  six  years  by  defendant  in  the  Mammoth  seam, 
the  first  stratum  of  coal  below  the  surface:  also  evidence  tending 
to  show  very   recent  mining  in  the  Wharton  seam,  the  next  one 
underneath  the  Mammoth ;  and  that  from  one  or  the  other  cause,  or 
from  both  combined,  the  subsidence  was  caused.    On  the  whole  case 
we  deduce  these  propositions : 

1.  If  the  failure  to  furnish  sufficient  support  to  the  surface  was 
from  mining,  either  bv  defendant  or  his  predecessors,  more  than  six 
vears  before  suit,  the  action  is  barred  by  the  statute  of  limitations. 

2.  The  right  to  sue  passes  to  the  surface  owner  who  is  in  posses- 
sion when  the  subsidence  occurs,  without  regard  to  the  date  of  his 
conveyance.   This  right  is  barred  by  the  statute  of  limitations  if  the 


774 


SEVERANCE    AND    LATERAL    SUPPORT. 


cause   of   the    subsidence   arose   more   than   six   years   before   suit 
brought. 

3.  Even  if  the  main  body  of  the  coal  under  plaintiff's  land  has 
been  mined  out  more  than  six  years  before  suit  brought,  yet,  if  de- 
fendant has  done  additional  mining  by  removal  of  coal  left  in  pre- 
vious work,  or  by  robbing  of  pillars  within  six  years  before  suit,  and 
without  such  additional  mining  the  surface  would  not  have  subsided 
during  plaintiff's  occupancy,  yet,  if  such  additional  work  or  mining 
hastened  the  result,  the  defendant  is  answerable  in  damages  therefor. 

4.  If  defendant,  by  mining  within  six  years  another  underlying 
seam  (the  Wharton)',  whereby  the  pillars  and  support  left  in  the 
seam  above  (the  Mammoth),  which  otherwise  would  have  been  suf- 
ficient support  to  the  surface,  have  been  rendered  insufficient,  and 
the  cave-in  occurred,  defendant  is  answerable  to  plaintilTt  in  damages. 

5.  If  plaintiff  be  entitled  to  recover,  his  measure  of  damages  is 
the  actual  loss  he  has  sustained  to  his  land,  including  the  building 
thereon,  by  reason  of  the  cave-in.  The  difference  in  the  market 
value  before  and  after  the  injury  in  this  class  of  cases  is  not  the  true 
rule.  In  this  case,  under  the  evidence,  perhaps  it  worked  no  injus- 
tice ;  but  in  many  cases  it  would  do  so. 

In  a  case  of  this  character,  it  is  of  the  utmost  importance  that 
the  averments  should  be  more  specific  as  to  the  time  the  coal  was 
mined  under  the  lot,  and  as  to  who  mined  it.  While,  probably,  we 
would  not  reverse  for  this  paucity  in  the  statement,  nevertheless 
it  would  greatly  aid  in  a  correct  review  of  the  case  if  all  the  grounds 
of  action  were  clearly  and  more  specifically  stated.  But  the  learned 
judge  of  the  court  below  went  much  further  than  instruction  on  the 
matter  so  meagerly  averred,  and  which  was  the  only  issue  in  the 
case.  Evidence  was  offered  and  received  tending  to  show  that  de- 
fendant was  mining  coal  at  a  distance  from  the  lot  in  question  in 
other  parts  of  the  Hazleton  mine.  From  this  evidence  plaintiff 
argued  that,  even  if  their  property  had  not  been  injured  from  lack 
of"  surface  support  in  the  mine  underneath  it,  the  subsidence  was 
caused  at  the  point  under  the  lot  by  removing  lateral  support  at 
other  mines  some  distance  from  the  lot  in  question.  There  was  some 
evidence  given  to  sustain  this  view,  and  the  court  charged  as  fol- 
lows :  "It  would  appear  generally  from  the  testimony  that  the  injury 
complained  of  here  did  not  come  from  the  immediate  mining  and 
its  consequences.  Did  it  come  from  any  other  source?  Mr.  McNaie 
has  testified  (and  he  is  a  mining  engineer,  and  has  been  in  charge 
of  these  mines,  and  knows  all  about  the  inside  operation  of  them) 
that  there  was  no  immediate  mining  under  this  property,  to  the  best 
of  his  judgment,  since  1858.  If  you  should  find  that  this  injury  did 
not  come  from  immediate  mining  under  the  property,  did  it  come 
from  the  general  mining  carried  on  by  these  defendants  in  the 
Hazleton  mines,  which  were  generally  a  part  and  parcel  of  these 
mines?    If  it  did,  and  vou  should  so  find,  then  these  defendants, 


SEVERANCE   AND    LATERAL   SUPPORT,  775 

under  the  law,  would  be  liable  in  damages  for  the  amount  of  the 
injury  which  you  find  the  plaintiffs  sustained."  The  defendant 
assigns  this  instruction  for  error.  When  we  consider  that  there  is 
not  an  intimation  in  the  statement  that  any  such  cause  for  the  injury 
ever  had  an  existence,  it  is  somewhat  difficult  to  conceive  how  it 
could  have  been  adopted  as  one  of  the  grounds  of  recovery.  Dam- 
age for  failure  to  furnish  vertical  support  to  the  surface  in  mining 
underneath  is  a  well-known  cause  of  injury  to  the  surface  owner; 
but  that  an  adjacent  owner  has,  by  removing  lateral  support,  caused 
a  vertical  subsidence  of  the  surface,  is  an  altogether  different  aver- 
ment of  the  ground  of  complaint.  He  may  be  the  same  or  some 
other  than  the  operator  of  the  mine  underneath.  His  duty  is  not 
in  all  respects  the  same.  The  rule  for  the  computation  of  damages 
is  not  the  same.  The  authorities  are  in  substantial  accord  on  this 
question,  though  not  giving  the  same  reasons.  Richards  v.  Jenkins, 
i8  Law  T.  (N.  S.)  437,  and  17  Wkly.  Rep.  30;  Corporation  of  Bir- 
mingham V.  Allen,  6  Ch.  Div.  284 ;  Dalton  v.  Angus.  6  App.  Cas. 
791 ;  McGettigan  v.  Potts,  149  Pa.  158,  24  Atl.  198.  In  the  last 
cited  case  it  is  decided  that :  "The  rule  that  the  owner  is  entitled 
to  lateral  support  for  his  ground  extends  only  to  support  for  his 
ground  in  its  natural  state,  and  does  not  include  such  support  for 
the  protection  of  buildings  or  other  structures  placed  upon  it. 
Where,  by  reason  of  an  excavation,  without  negligence,  made  by 
defendant  on  his  own  land,  the  land  of  the  plaintiff  sinks  or  falls 
away,  the  measure  of  damages  is  not  the  diminution  in  value  of  the 
lot  of  the  plaintiff  by  reason  of  the  act  of  the  defendant,  but  the 
amount  of  injury  actually  done  to  the  plaintiff's  land.  The  measure 
of  the  damages  where  land  is  taken  by  right  of  eminent  domain, 
which  is  the  difference  betvveen  the  value  of  the  whole  of  the  plain- 
tiff's land  before  the  taking  and  its  value  immediately  afterwards, 
has  no  application  in  such  case."  We  do  not  decide  that  plaintiff 
might  not  have  originally  embraced  in  the  same  statement  this  cause 
of  action,  for  we  are  of  opinion  he  might  have  done  so.  But  he  did 
not.  He  could  not  recover  on  it  when  he  alleged  but  the  one  cause, 
and  that  a  different  one.  It  was  plainly  error  to  admit,  under  this 
statement,  the  evidence  tending  to  show  a  destruction  of  lateral  sup- 
port. The  defendant  had  not  been  called  into  court  to  answer  such 
complaint,  and  ought  not  to  have  had  a  possible  verdict  on  that 
ground  against  him.  It  is  now  too  late,  under  the  authorities,  for 
plaintiff  to  introduce  this  new  cause  of  action  under  an  amendment, 
for  the  statute  of  limitations  bars  it.  See  a  full  discussion  of  this  sub- 
ject by  Sharswood,  ].,  in  Appeal  of  Wilhelm,  79  Pa.  134. 

Appellant's  third  assignment  of  error  is  sustained ;  the  others  are 
not.  We  have  noticed  them  to  the  extent  of  pointing  out  the  course 
the  trial  should  take  upon  a  new  venire,  so  that,  if  possible,  we  may 
be  saved  from  a  second  review. 

The  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded. 


-j-j^  SEVERANCE   AND    LATERAL    SUPPORT. 

MATULYS  V.  PHILADELPHIA  &  READING  COAL  &  IRON 

CO. 

1902.     Supreme  Court  of  Pennsylvanlx. 
201  Pa.  70,  50  Atl.  823. 

Action  by  Susan  Matuly?  against  the  I'hiladelphia  &  Reading 
Coal  &  Iron  Company  for  dei^rivinc^  land  of  lateral  support.  Judg- 
ment for  plaintiff,  and  defendant  appeals.     Modified. 

Brown,  J. — In  the  two  deeds  from  the  appellant  to  the  appellee, 
for  the  lots  to  which  the  alleged  injury  had  been  done,  the  following 
reservations  and  conditions  occur :  "Excepting  and  reserving  to  the 
said  party  of  the  first  part,  their  lessees,  tenants,  or  their  successors 
and  assigns,  all  the  fossil  or  mineral  coal,  iron,  and  other  ores  that 
may  be  found  under  the  surface  of  the  earth  within  the  boundaries 
of  the  above  mentioned  and  described  lot  or  piece  of  ground,  with  the 
entire  right  to  mine,  dig,  and  carry  away  the  same,  and  to  pass  into 
and  through  said  land  in  all  directions,  and  to  excavate  and  use  the 
same  below  the  surface  for  all  purposes  necessary  or  convenient  in 
mining  coal,  ores,  or  minerals  from  said  land,  and  from  any  other 
land,  as  fully  and  freely  as  if  this  grant  had  not  been  made,  with- 
out making  any  compensation  therefor  to  the  said  party  of  the 
second  part,  her  heirs  and  assigns:  provided,  always,  that  neither 
the  said  party  of  the  first  part,  or  their  successors  or  assigns,  nor 
any  other  parties  interested  in  the  legal  or  equitable  titles  to  the 
premises,  shall  be  in  any  way  responsible  for  the  acts  or  doings 
of  their  lessees,  or  any  of  them,  in  working,  mining,  or  digging 
the  said  coal,  iron,  or  other  minerals,  nor  for  any  loss  or  dam- 
age which  such  acts  or  doings  may  occasion  to  the  said  party 
of  the  second  part,  or  any  other  person  or  persons,  owners  or  oc- 
cupiers of  the  premises :  excepting  and  reserving,  also,  all  run- 
ning springs  and  streams  of  water  on  the  surface  of  the  ground 
which  may  at  any  time  hereafter  be  diverted  by  the  said  party 
of  the  first  part,  their  successors  or  assigns,  if  it  should  be  deemed 
expedient  for  their  use,  or  for  the  purpose  of  laying  out  and 
making  any  streets  or  alleys;  and  also  the  rights  of  laying  water 
and  gas  pipes  through  or  under  the  surface  of  the  said  streets  or 
alleys,  doing  as  little  injury  as  possible;  and  also  the  right  of  mak- 
ing and  using  drifts  and  tunnels  through  and  under  the  said  lot  or 
piece  of  ground  in  all  directions,  for  mining  purposes,  on  the  same  or 
other  land."  The  injuries  of  which  the  appellee  complains  have  not 
resulted  from  the  mining  of  coal  under  the  lots  conveyed  by  these 
deeds,  but  from  mining  operations  at  least  100  feet  distant,  beneath 
surface  owned  by  the  appellant.  The  subsidence  of  that  surface 
caused  the  surface  of  appellee's  lots  to  crack  or  open,  and,  however 
earnestly  learned  counsel  for  the  appellant  may  ask  us  to  consider 
the    foregoing    reservations    in    determining    whether    there    is    any 


SEVERANCE    AND    LATERAL    SUPPORT.  'J'J'J 

liability  to  the  appellee,  it  is  manifest  that  the  questions  raised  on 
this  appeal  must  be  considered  and  disposed  of  without  regard  to 
them.  Nothing  that  was  done  beneath  the  lots  conveyed,  to  which 
alone  the  exceptions  and  reservations  in  plainest  words  apply,  in- 
jured appellee's  property.  No  use  by  the  appellant  of  the  land  be- 
neath appellee's  surface,  in  mining  coal  there,  or  in  mining  it  "from 
any  other  land,"  is  complained  of.  It  was  the  subsidence  of  the  sur- 
face of  the  adjoining  property,  owned  by  the  appellant,  that  caused 
the  injury  for  which  compensation  is  sought,  and  it  is  clear,  without 
further  comment,  that  any  liability  of  the  defendant  is  that  of  an 
adjoining  owner  failing  in  the  discharge  of  an  absolute  duty  not  to 
interfere  with  the  lateral  support  of  the  land  of  appellee,  and  causing 
injury  to  the  buildings  of  the  latter  by  carelessness  and  negligence 
in  mining  operations  on  its  own  land.  The  question  involved  is 
not  whether  there  is  any  liability  by  the  appellant  to  the  appellee, 
in  view  of  the  reservations  in  the  deeds  of  the  former  to  the  latter, 
but  is  simply  whether  the  Philadelphia  &  Reading  Coal  &  Iron  Com- 
pany, in  operating  its  own  mines,  is  liable  to  an  adjoining  surface 
owner  for  injuries  resulting  from  its  withdrawal  of  lateral  support, 
and  must  be  determined  as  if  the  reservations  had  not  been  incor- 
porated in  the  deeds. 

From  the  testimony  submitted  by  the  plaintiff,  it  appears  that  cer- 
tain supports  of  the  surface  of  the  land  that  was  being  mined  by  the 
defendant  more  than  lOO  feet  south  of  plaintiflf's  land  gave  way,  and 
a  subsidence  of  defendant's  surface  followed.  The  surface  was  of 
rock,  of  some  length,  and,  in  settling,  worked  like  a  lever,  the  one 
end,  or  power,  being  on  the  land  of  defendant,  and  the  other,  or 
weight,  on  that  of  plaintiff.  As  the  end  on  the  south  subsided,  the 
other  end  on  the  north,  on  plaintiff's  land,  cracked  or  broke,  leaving 
a  crevice,  and  causing  injury  to  the  lots  and  buildings  on  them.  No 
testimony  was  offered  by  the  defendant,  and,  in  its  history  of  the 
case,  it  frankly  admits:'  "The  injury  was  not  caused  by  mining 
under  the  lots  'conveyed,  but  by  mining  operations  several  hundred 
feet  distant,  and  the  subsidence  of  the  surface  at  that  point,  causing 
the  surface  of  the  lots  to  open  at  different  points,  which  the  plaintiff 
claims  injured  her  buildings."  The  case  is,  therefore,  one  of  injury 
resulting  to  a  landowner  for  the  withdrawal  of  lateral  support  by  an 
adjoining  owner  in  its  mining  operations  on  its  own  land.  The 
plaintiff  was  entitled  to  the  natural  lateral  support  of  her  ground, 
and,  if  the  same  was  withdrawn  by  her  neighbor  in  niining  opera- 
tions on  its  own  land,  for  any  injury  to  her  lots  resulting  from  the 
withdrawal  of  such  support  compensation  must  be  made.  The  right 
to  such  lateral  support  is  an  absolute  one,  and  the  adjoining  owner 
who  withdraws  it,  whether  negligent  or  not,  in  excavating  or  min- 
ing his  land,  is  liable  for  injuries  resulting  to  his  neighbor's  ground. 
McGettigan  V.  Potts,  149  Pa.  155,  24  Atl.  198;  McGuire  v.  Grant, 
25  N.  J.Law,  365,  67  Am.  Dec.  49.    "But  in  the  case  of  land  which 


7/8  SEVERANCE   AND    LATERAL    SUPPORT. 

is  fixed  in  its  place,  each  owner  has  the  absolute  right  to  have  his 
land  remain  in  its  natural  condition,  unaffected  by  any  act  of  his 
neighbor,  and,  if  the  neighbor  digs  upon  or  improves  his  own  land 
so  as  to  injure  this  right,  may  maintain  an  action  against  him,  with- 
out proof  of  negligence."  Gilmore  v.  Driscoll,  122  Mass.  199,  23 
Am.  Rep.  312. 

Under  plaintiff's  proof — so  clear  that  the  defendant  does  not  at- 
tempt to  controvert  it — that  the  injury  to  her  lots  resulted  from  de- 
fendant's withdrawal  of  their  lateral  support  in  its  mining  opera- 
tions on  its  own  property,  the  learned  trial  judge  correctly  directed 
the  jury  to  return  a  finding  in  her  favor  for  the  amount  of  damage 
done  to  the  lots.  By  agreement  of  parties,  this  damage  was  fixed 
at  $2,000,  and  for  that  sum  plaintiff  is  entitled  to  judgment  on  the 
verdict.  We  cannot,  however,  approve  the  court's  direction  that 
a  finding  should  be  returned  for  $500  in  favor  of  the  plaintiff,  the 
sum  agreed  upon  as  the  amount  of  damage  done  to  her  buildings. 
The  lateral  support  of  land,  to  Avhich  the  owner  thereof  has  an 
absolute  right,  and  for  the  deprivation  of  which  by  his  neighbor  he 
can  maintain  an  action  without  proof  of  negligence,  extends  only 
to  the  land  itself  in  its  natural  condition,  and  does  not  include  sup- 
port for  the  protection  of  buildings  or  improvements  upon  it.  This 
is  well  settled  in  England  and  with  us.  McGettigan  v.  Potts, 
McGuire  v.  Grant,  and  Gilmore  v.  Driscoll,  supra.  Attention  can 
prc)i)erly  be  called  to  the  numerous  authorities  cited  in  the  last  case. 
As  this  absolute  right  to  lateral  support  is  limited  to  the  land  itself  in 
its  natural  condition,  there  can  be  no  recovery  for  injuries  to  build- 
ings or  improvements  resulting  from  the  withdrawal  of  such  sup- 
port, in  the  absence  of  proof  of  negligence  or  carelessness  in  excavat- 
ing or  mining  on  the  adjoining  land.  This  is  equally  well  settled, 
and  the  rule  is  nowhere  more  distinctly  announced  than  in  Foley  v. 
Wveth,  2  Allen,  131.  79  Am.  Dec.  771,  where  the  court,  after  refer- 
ring to  the  absolute  right  of  an  adjoining  owner  of  land  to  lateral 
support  for  it  in  its  natural  condition,  said:  "It  is  a  necessary  conse- 
quence from  this  principle  that,  for  any  injury  to  his  soil  resulting 
from  the  removal  of  the  natural  support  to  which  it  is  entitled,  by 
means  of  excavation  on  an  adjoining  tract,  the  owner  has  a  legal 
remedv  in  an  action  at  law  against  the  party  by  wdiom  the  work  has 
been  done  and  the  mischief  thereby  occasioned.  This  does  not  de- 
pend upon  negligence  or  unskillfulness,  but  upon  the  violation  of  a 
right  of  property  which  has  been  invaded  and  disturbed.  This  un- 
qualified rule  is  limited  to  injuries  caused  to  the  land  itself,  and 
does  not  aft'ord  relief  for  damages  by  the  same  means  to  artificial 
structures.  For  an  injury  to  buildings,  which  is  unavoidably  incident 
to  the  depression  or  slide  of  the  soil  on  which  they  stand,  caused  by 
the  excavation  of  a  pit  on  adjoining  land,  an  action  can  only  be 
maintained  when  a  want  of  due  care  or  skill,  or  positive  negligence, 


SEVERAXCE    AND    LATERAL    SUPPORT.  779 

has  contributed  to  produce  it."  Is  there  proof  of  any  negligence  or 
want  of  care  on  the  part  of  appellant  which  resulted  in  the  injuries 
to  appellee's  buildings?  Nothing,  as  we  have  already  seen,  was 
done  beneath  plaintiff's  surface  that  caused  any  of  the  injuries  com- 
plained of.  No  support  by  those  mining  beneath  it  was  withheld 
from  the  upper  owner,  entitled  to  it,  resulting  in  injuries  for  which 
there  would  be  an  unquestioned  liability,  and  Jones  v.  Wagner,  66 
Pa.  429,  5  Am.  Rep.  385,  upon  which  appellee  seems  to  rely,  is 
not  at  all  in  point.  If  the  appellant  was  negligent  or  careless,  it 
was  so  only  as  to  its  own  surface  beneath  which  it  was  mining ;  but 
it  was  responsible  to  no  one  for  its  negligence  or  want  of  care  there, 
unless  likely  to  result  in  injury  to  another  or  his  property,  to  whom 
or  to  which  the  duty  of  care  was  owed.  So  far  as  the  buildings  of 
the  appellee  are  concerned — and,  for  that  matter,  her  land  itself — - 
nothing  can  be  found  in  the  testimony  showing  negligence  or  care- 
lessness by  the  appellant.  Nothing  that  it  did  on  its  own  land  in 
its  mining  operations  indicates  any  negligence  or  w^ant  of  care 
towards  its  neighbor,  and  it  could  not  reasonably  have  anticipated 
that,  even  if  it  failed  to  properly  support  its  own  surface,  the 
peculiar  injury  complained  of  would  result.  Negligence  or  want  of 
due  care  in  withdrawing  lateral  support  in  excavating  or  mining  on 
adjoining  land,  for  which  there  is  liability  for  injury  to  a  neighbor's 
buildings,  means  positive  negligence  or  manifest  want  of  due  care 
in  the  excavations  or  mining  so  far  as  they  affect,  or  are  likely  to 
affect,  adjoining  improvements.  There  was  not  only  no  proof  of 
such  negligence  here,  but  the  appellant  can  fairly  say  that,  even  if  it 
did  not  properly  support  its  own  surface,  it  ought  not  to  be  charged 
against  it  that  it  should  reasonably  have  anticipated  what  happened 
to  appellee's  surface,  and  the  improvements  on  the  same,  by  reason 
of  its  failure  to  support  its  own  surface. 

The  judgment  that  the  appellant  pay  $500  for  injuries  to  appellee's 
buildings  is  reversed,  and  is  now  for  $2,000,  for  the  injury  to  the 
surface  of  the  lots,  with  interest  from  April  17,  1900,  the  date  of  the 
verdict. 


PIEDMONT  &  GEORGE'S  CREEK  COAL  CO.  v.  KEARNEY. 
191 1.    Court  of  Appeals  of  Maryland.    14  Md.  496,  79  Atl.  1013. 

Action  by  Charles  D.  Kearney  against  the  Piedmont  &  George's 
Creek  Coal  Company.  Judgment  for  plaintiff,  and  defendant  ap- 
peals.    Affirmed. 

Boyd,  C.  J.^ — The  appellee  sued  the  appellant  for  damages  alleged 

^  The  statement  of  the  praj^ers  for  instructions  to  the  jury,  (reported  just 
preceding  the  opinion,)  and  parts  of  the  opinion  are  omitted. 


780  SEVERANCE  AND  LATEUAr,  SUrPOKT. 

to  have  been  sustained  by  him  by  reason  of  the  appellant  removing 
the  coal  which  supported  the  surface  owned  by  him  in  a  tract  of 
land  containing  fourteen  acres.  The  property  was  conveyed  to  the 
plaintiff  in  1897,  "except,  however,  all  coal  and  other  minerals  on 
or  underlying  said  above  granted  i:)roperty  to  the  same  extent  and 
in  like  manner  as  excepted  in  the  said  deed  from  Maria  Reese,  et  al. 
to  Daniel  Ritchey  and  Stewart  Arnold  above  described."  In  the  deed 
referred  to  is  this  reservation :  "The  parties  of  the  first  part  reserve 
to  themselves,  their  heirs  and  assigns,  all  coal  and  other  minerals  that 
have  been  or  may  hereafter  be  found  on  or  in  the  said  lands,  together 
with  the  right  to  mine  and  remove  the  said  coal  or  minerals  at  such 
place  or  places  as  may  appear  to  them,  the  said  first  parties,  their 
heirs  or  assigns,  most  suitable  and  convenient  by  tramroad,  plane  and 
dump  houses  or  otherwise,"  etc.     '•'     *     '•' 

Before  passing  on  the  exceptions  separately,  il  will  l)e  well  to 
ascertain  what  the  law  is  as  between  the  owner  of  the  surface  and 
the  owner  of  the  minerals,  when  those  estates  have  been  severed 
by  such  provisions  or  reservations  as  those  now  before  us.  This  is 
the  first  time  this  court  has  been  called  upon  to  pass  on  the  doctrine 
of  subjacent  support,  where  the  surface  and  subjacent  estates  are 
owned  by  different  persons. 

[i]  The  general  rule  of  law  is  that  when  the  estate  in  minerals 
"in  place,"  as  they  are  sometimes  spoken  of  in  their  natural  bed,  is 
severed  from  the  estate  in  the  surface,  the  owner  of  the  latter  has 
an  undoubted  right  of  subjacent  support  for  the  surface,  and  the 
owner  of  the  estate  in  the  minerals  is  entitled  to  remove  only  so 
much  of  them  as  he  can  take  without  injury  to  the  surface,  unless 
otherwise  authorized  by  contract  or  statute.  There  have  been  >ome 
discussions  in  the  books  as  to  the  reasons  upon  which  the  rule  was 
founded,  but  we  have  seen  no  case  in  which  it  has  been  unqualifiedly 
denied.  Even  in  Grifiin  v.  Fairmont  Coal  Co..  59  \V.  Va.  480.  53 
S.  E.  24,  2  L.  R.  A.  (N.  S.)  1 1 15,  which  has  gone  as  far  in  sustain- 
ing the  right  of  the  owner  of  the  minerals  to  remove  all  of  them 
as'\ny  decision  we  have  found,  the  general  doctrine  is  recognized. 
Without  referring  to  the  Tinglish  cases  upon  which  the  original 
decisions  in  this  country  were  based,  the  general  rule  announced 
above  is  sustained  by  many  of  the  courts  of  this  country ;  the  cases 
in  Pennsylvania,  where  so  much  mining  has  been  done,  being 
especially  numerous.  Amongst  others  are  Williams  v.  Gibson,  84 
Ala.  228,  4  South.  350,  5  Am.  St.  Rep.  368:  Collinsville  Granite 
Co.  v.  Phillips,  123  Ga.  830,  51  S.  E.  666;  Wilms  v.  Jess,  94  111. 
464.  34  Am.  Rep.  242;  Lloyd  v.  Catlin  Coal  Co.,  210  111.  460,  71 
N.  E.  335 ;  Yandes  v.  Wright,  66  Ind.  319,  32  Am.  Rep.  109 ;  Mickle 
V.  Douglas,  75  Iowa  78,  39  N.  W.  198 ;  Erickson  v.  ^lichigan  Land 
&  Iron  Co.,  50  Mich.  604,  16  N.  W.  161  ;  Chicago,  etc.,  R.  Co.  v. 
Brandau,  81   AIo.  App.   i  ;  Marvin  v.  Brewster  Iron  Min.  Co..  55 


SEVERANCE    AND    LATERAL    SUPPORT.  781 

N.  Y.  538,  14  Am.  Rep.  322 ;  Burgner  v.  Humphrey,  41  Ohio  St. 
340 ;  Jones  v.  Wagner,  66  Pa.  429,  5  Am.  Rep.  385  ;  Coleman  v. 
Chadwick.  80  Pa.  81,  21  Am.  Rep.  93;  Carlin  v.  Chappel,  loi  Pa. 
350,  47  Am.  Rep.  722;  WilUams  v.  Hay,  120  Pa.  485,  14  Atl. 
379,  6  Am.  St.  Rep.  719;  Pringle  v.  Vesta  Coal  Co.,  172  Pa.  438, 
33  Atl.  690;  Robertson  v.  Youghiogheny  River  Coal  Co.,  172  Pa. 
566,  33  Atl.  706;  Xoonan  v.  Pardee,  200  Pa.  474,  50  Atl.  255,  55 
L.  R.  A.  410,  86  Am.  St.  Rep.  722 ;  Youghiogheny  River  Coal  Co. 
V.  Alleghenv  National  Bank,  211  Pa.  319,  60  Atl.  924,  69  L.  R.  A. 
637;  Miles  V.  Penn.  Coal  Co.,  217  Pa.  449,  66  Atl.  764  (annotated 
in  10  Am.  &  Eng.  Ann.  Cas.  874).  A  number  of  the  English  cases 
are  cited  in  the  notes  to  Trinidad  Asphalt  Co.  v.  Ambard  [1899] 
A.  C.  594,  to  be  found  in  6  Am.  &  Eng.  Dec.  in  Eq.  643,  and  in 
some  of  the  cases  referred  to  above,  and  we  will  not  make  further 
reference  to  them. 

[2]   Although  the  rule  has  been  so  generally  adopted,  the  parties 
can  modify  itor  avoid  its  application  iDy  inserting  provisions  in  the 
grants  or  leases  which,  expressly  or  by  necessary  intendment,  relieve 
the  owners  of  the  minerals  of  the  duty  to  furnish  subjacent  support, 
and  in  many  of  the  cases  which  have  been  before  the  courts  the  ques- 
tion has  be'en  whether  that  was  done  by  the  particular  provisions, 
and,  if  so,  to  what  extent.  We  have  quoted  [cited]  above  those  which 
must   govern   in   this   case.     There  are   many   decisions   in   which 
provisions  verv  similar  to  these  have  been  held  not  to  be  sufficient 
to  relieve  the  owners  of  the  minerals  of  their  duty  to  support  the 
surface.     In  JNIickle  v.  Douglas,  supra,  there  was  a  lease  with  the 
right  to  mine,  "all  the  coal"  ;  in  Burgner  v.  Humphrey,  supra,  there 
was  a  grant  of  "all  the  mineral,  coal,  iron  ore,  limestone,  and  all 
other  minerals,"  with  the  right  to  enter  upon  the  land  and  search 
and  explore  thereon  for  said  minerals,  coal,  etc.,  "and  when  found 
to  exist  on  said  land  to  dig.  mine,  and  remove  the  same  therefrom" ; 
in  Horner  v.  Watson,  79  Pa.  242,  21  Am.  Rep.  55,  the  grant  was 
all  the  coal,  with  the  right  to  enter  on  the  lands  for  the  purpose 
of    "mining,    excavating,    and    removing    said    coal" ;    in    Carlin    y. 
Chappel,  supra,   the  deed  of  the  surface  reserved  "all  the  coal," 
with  the  right  of  ingress,  egress  and  regress,  "for  digging,  min- 
ing, excavating,  and  conveving  awav  said  coal" ;  in  Weaver  v.  Ber- 
wind-White   Coal   Co.,  216  Pa.    195,  65   Atl.   545,  the  grant  was 
for  ''all  the  merchantable  coal  in  and  underlying  all  that  tract  of 
land"  for  which  the  right  of  surface  support  was  claimed,  excepting 
five  acres  under  the  buildings  and  spring,  the  usual  mining  rights, 
were  granted,  "with  the  right  to  mine  and  carry  away  all  the  said 
coal,  and  with  all  the  mining  rights  and  privileges  necessary  or  con- 
venient to    such    mining   and    removal   of   the    same."      See.    also, 
Dignan  v.  Altoona  Coal  &  Coke  Co.,  222  Pa.  390,  71  Atl.  845.  128 
Am.  St.  Rep.  812,  one  of  the  latest  on  the  subject.     In  those  cases 
it  was  held  that  the  right  of  subjacent  support  was  not  released  in 


782  SEVERANCE   AND    LATERAL    SUPPORT. 

express  terms  or  by  necessary  implication  by  tbe  words  used. 
Many  others  in  accord  with  that  position  might  be  cited,  but  we 
will  only  refer  to  the  note  in  Griffin  v.  Fairmont  Coal  Co.,  2  L.  R.  A. 
(N.  S.)  1 1 15,  and  the  note  to  Miles  v.  Penna.  Coal  Co.,  10  Am. 
&  Eng.  Ann.  Cas.  874,  where  many  of  them  are  collected.  The  case 
of  Miles  V.  Penna.  Coal  Co.  is  an  illustration  of  how  such  right  can 
be  released,-  while,  on  the  other  hand,  that  of  Youghiogheny  River 
Coal  Co.  V.  Hopkins,  198  Pa.  343,  48  Atl.  19,  shows  how  careful 
that  court  is  to  sustain  the  right,  unless  it  is  released  by  express 
words  or  necessary  implication.  The  case  of  Griffin  v.  Fairmont 
Coal  Co.,  supra,  is  the  only  one  we  have  found  where  language  simi- 
lar to  that  in  the  reservation  in  the  deed  now  before  us  was  held  to 
be  a  release."  When  the  doctrine  or  right  of  sul)jacent  support  is 
recognized,  as  it  is  with  practical  unanimity  by  the  authorities,  it 
seems  to  us  to  be  far  better  to  require  those  who  desire  to  enter  into 
stipulations  by  which  the  one  party  to  the  transaction  is  to  part  with 
the  right  which  the  law  gives  him,  and  the  other  is  to  be  relieved  of 
a  duty  which  the  law  imposed  upon  him,  to  use  language  that  will 
necessarily  import  or  clearly  express  such  intention.  It  should  be 
either  by  express  words  or  necessary  implication,  and  in  our  judg- 
ment the  language  used  in  this  reservation  was  not  sufficient  to 
relieve  the  appellant  of  its  duty  to  support  the  surface.  It  is  also 
held  by  the  authorities  that  a  failure  to  leave  sufficient  support  for 
the  surface  is  negligence  and  may  be  so  declared  on.  Yandes  v. 
Wright,  supra;  Jones  v.  Wagner,  supra;  Carlin  v.  Chappel,  supra. 
[3]  Having  thus  ascertained  the  rights  and  duties  of  the  re- 
spective parties  to  this  suit  bv  reason  of  the  ownership  of  the  surface 
by  the  plaintiff  and  the  coal  by  the  defendant,  we  w  ill  now  consider 
the  particular  grounds  of  complaint  urged  against  the  rulings  of  the 
court  by  the  appellant.     *     *     * 

Mn  Miles  V.  Pennsylvania  Coal  Co..  217  Pa.  449,  66  Atl.  764.  there  was 
a  demise  of  "all  the  merchantable  coal  lying  and  bemg  in  the  vems  in,  under 
and  upon"  the  land  described  "together  with  the  right  to  mine  and  remove 
said  coal  in  said  veins  until  all  the  merchantable  coal  has  been  mined  and 
removed  from  said  veins  on  said  hereby  leased  premises"  and  from  the  con- 
struction of  that  and  of  other  language  in  the  lease  giving  the  lessee  unlimited 
surface  rights  the  court  reached  the  conclusion  that  the  lessee  was  intended  to 
have  and  did  have  the  right  to  remove  all  the  coal,  including  certain  pdlars 
of  coal  which  supported  the  surface,  "without  liability  for  injury  done  thereby 

to  the  surface."  ^         ,       .  ,     ^,        •   u^   ^.^ 

nn  Griflfin  v.  Fairmount  Coal  Co.,  the  grantee  of  coal  with  the  right  to 
remove  "all"  of  it  was  held  to  have  the  right  to  remove  the  coal  without  any 
obligation  to  leave  any  to  support  the  surface  and  therefore  without  liability 
for  the  subsidence  of  the  surface  necessarily  caused  by  the  removal  of  the 
coal  But,  "It  would  seem  as  if  the  grantee  of  coal  or  of  precious  metal  min- 
erals should  not  have  the  right  to  deprive  the  surface  of  support,  unless  the 
right  to  let  down  the  surface  is  granted  in  express  terms  or  by  unavoidable 
implication,  which  does  not  exist  where  'all  the  coal"  or  'all  the  mineral  is 
granted;  and  that  is  the  majority  view."— Costigan,  Mining  Law,  506. 


o 


SEVERANCE    AND    LATERAL    SUPPORT.  783 

The  defendant  by  its  second  prayer  asked  the  court  to  instruct 
the  jury  "that  they  cannot  under  the  pleadings  and  evidence  in  this 
cause  allow  anything  for  the  reduction  of  moisture  in  the  surface 
even  though  they  should  beheve  that  the  reduction  of  the  moisture 
in  the  land  was  the  direct  result  of  the  mining  of  the  coal  under  the 
land  of  the  plaintifif."  It  will  be  observed  that  that  prayer  asked 
the  court  to  instruct  the  jury  that  they  could  not  "allow  anything 
for  the  reduction  of  moisture  in  the  surface."  The  testimony  shows 
that  the  depth  of  the  cover  was  350  or  400  feet,  and  it  was  admitted 
at  the  opening  of  the  case  that  "all  the  coal  to  a  depth  of  six  feet 
under  the  plaintiff's  property  was  removed  by  the  defendant  com- 
pany after  the  year  1906,  and  that  no  stumps  or  pillars  were  left, 
and  that  this  was  done  before  the  injuries  to  the  surface."  The 
rule  is  well  established  that  the  owner  of  the  coal  is  not  liable  to  the 
owner  of  the  surface  for  injuries  resulting  from  the  diversion  of 
what  are  spoken  of  as  hidden  streams,  caused  merely  by  the  removal 
of  the  coal.  In  Coleman  v.  Chadwick,  80  Pa.  87,  21  Am.  Rep. 
93,  relied  on  by  the  appellant,  the  court  said:  "So  far  as  we  can 
judge  from  the  record,  the  loss  of  the  plaintiff's  springs  was  occa- 
sioned by  the  ordinary  operation  of  mining,  and  would  have  oc- 
curred though  no  part  of  the  surface  had  been  broken.  Mining 
must  interfere,  more  or  less,  with  those  subterranean  streams  and 
percolations  of  water  which  appear  upon  the  surface  as  springs.  To 
say  that  the  owner  of  the  substrata  shall  be  accountable  in  damage 
for  their  disturbance  is  to  say  that  he  shall  have  no  use  whatever  of 
his  minerals,  for,  without  interfering  to  some  extent  with  such 
waters,  mining  is  impossible."  That  seems  to  us  to  be  a  very 
sensible  and  necessary  rule  to  adopt. 

But  the  principle  referred  to  in  Coleman  v.  Chadwick  does  not 
reach  the  question  here  involved,  for,  conceding  to  its  full  extent 
that  no  damage  can  be  recovered  for  the  diversion  of  the  water,  if 
the  coal  is  worked  in  the  ordinary  and  proper  way,  if  it  is  so  worked 
as  to  take  away  the  support  of  the  surface,  then  it  is  not  worked  in 
a  proper  way.  This  prayer  proposed  to  disallow  anything  for  the 
reduction  of  moisture  in  the  surface,  while  it  must  be  clear  that  if  the 
loss  of  moisture  is  the  result  of  the  breaks  in  the  surface,  caused  by 
want  of  the  support  which  the  defendant  owed  the  plaintiff's  surface, 
then  the  loss  of  moisture  is  like  any  other  damage  which  is  the 
result  of  that  wrong  done  the  plaintiff.    The  prayer  was  too  broad. 

The  cases  in  Pennsylvania  show  the  distinction  we  have  pointed 
out.  In  Kistler  v.  Thompson,  158  Pa.  139,  27  Atl.  874,  the  court 
said :  "Nothing  could  be  more  clear  or  more  correct  than  the  charge 
of  the  learned  court  below  to  the  jury  on  all  the  legal  aspects  of  the 
case."  Judge  Mcllvaine  in  the  lower  court,  in  speaking  of  a  spring 
which  the  plaintiff"  claimed  was  valuable  to  her  property,  said :  "In 
1889  this  spring  disappeared,  and  she  alleges  that  the  spring  dis- 
appeared by  reason  of  the  subsidence  of  the  surface,  and  the  crack- 


784  SEVERANCE   AND    LATERAL    SUPPORT. 

ing  of  it,  on  account  of  the  support  being  withdrawn  by  those  that 
mined  the  coal,  they  having  failed  to  leave  sufficient  coal  to  support 
the  surface."  He  then  went  on  to  explain  the  duties  and  liabilities 
of  the  owner  of  the  coal  when  the  title  to  the  surface  is  in  another 
party,  and  he  said  he  had  the  right  to  remove  the  coal,  "and  if,  in 
so  doing,  he  should  interfere  with  the  hidden  streams  of  water  that 
may  be  running  through  the  earth,  and  thus  drain  the  spring  of 
another,  he  would  not'be  liable  for  damages,  if  the  spring  failed 
simply  because,  in  the  ordinary  operation  of  the  mine,  some  subter- 
ranean stream  was  tapped,  and  by  this  means  the  water,  in  place 
of  flowing  to  the  opening  in  the  ground  where  the  spring  was, 
flowed  to  some  other  place."  He  then  went  on  to  say,  however,  that, 
notwithstanding  his  right  to  remove  the  coal,  he  is  required  to  leave 
enough  to  support  the  surface,  or,  if  he  takes  all  of  it  out,  he  must 
substitute  sufficient  supports  to  keep  the  surface  in  place,  and  he 
added :  "Now.  if  he  fails  to  leave  sufficient  support,  *  '■■■  *  and 
bv  reason  of  this  failure  to  leave  sufficient  support  the  ground  sinks, 
subsides  and  cracks,  and  that  sinking  and  cracking  divert  a  stream 
of  water,  then  he  would  be  liable,  because  that  would  be  the  direct 
result  of  his  wrongfully  withdrawing  the  support  that  is  necessary 
and  sufficient  to  sustain  the  surface."  In  Rabe  v.  Shoenberger  Coal 
Co.,  213  Pa.  252,  62  Atl.  854,  3  L.  R.  A.  (N.  S.)  782,  annotated  in 
S  Am.  &  Eng.  Ann.  Cas.  216.  the  plaintiff  had  a  dairy  farm  which 
was  usually  well  supplied  with  water.  It  had  12  springs  on  it,  with 
water  in  every  field.  The  plaintiff  claimed  that  five  of  the  springs 
were  destroyed  by  the  cracks  in  the  land.  The  question  was,  "How 
much  was  the  farm  depreciated  in  value  by  the  loss  of  the  springs?" 
The  controversy  there  was  as  to  the  measure  of  damages,  but  the 
court  expressed  no  doubt  about  the  right  to  recover  for  the  loss  of 
the  springs  destroyed  by  the  cracks  in  the  land.  In  Weaver  v.  Ber- 
wind-White  Coal  Co.,  supra,  the  right  of  the  plaintiff  to  recover  for 
loss  of  springs,  which  resulted  from  the  removal  of  the  surface  sup- 
ports, was  fully   recognized. 

So,  without  further  discussing  that  question,  we  think  there 
was  no  error  in  the  rulings  in  the  first  and  second  bills  of  exception, 
or  in  rejecting  the  defendant's  second  prayer.    '■'    *    * 

[6]  It  must  be  admitted  that  the  rulings  on  the  questions  pre- 
sented by  the  third  and  fourth  exceptions  and  the  plaintift"s  second 
prayer  v^ere  not  so  free  from  doubt  as  the  others,  but.  when  they  are 
carefully  considered,  they  do  not  seem  to  be  subject  to  the  objections 
that  have  been  urged  against  them.    '•'    '^    * 

There  w^as  therefore  ample  evidence  tending  to  show  that  the 
farm  was  seriously  and  permanently  injured,  and  that  the  house  was 
likewise  not  only  seriously  injured,  but  v;as.  up  to  the  time  of 
the  trial,  continuing  to  crack  and  get  worse.  Under  those  cir- 
cumstances, it  would  seem  strange  if  the  law  furnished  no  relief 


SEVERANCE    AND    LATERAL    SUPPORT.  785 

but  repairing  the  house.  There  was  apparently  no  attempt  on  the 
part  of  the  defendant  to  show  that  it  could  be  repaired.    *    *    * 

As  will  be  seen  by  one  of  the  cases  cited  above  (Weaver's  Case), 
and  there  are  many  others  to  the  same  effect,  "if  the  injury  is  re- 
parable the  cost  of  repairing  may  be  recovered,  and  if  the  cost  of 
repairing  is  greater  than  the  diminution  in  the  market  value,  the 
latter  is  the  true  measure  of  damages."  So  in  a  case  where  the  cost 
of  repairing  exceeds  or  approaches  (as  indicated  by  the  evidence) 
the  diminution  in  the  market  value,  it  must  be  relevant  to  prove  that 
value,  for  otherwise  there  would  be  no  way  of  determining  whether 
the  cost  of  repairing  was  greater  than  the  diminution  in  value ;  and 
hence  for  that  reason  it  was  not  error  to  allow  it  to  be  proved — 
indeed,  justice  to  the  defendant  might  require  it,  under  the  above 
rule,  if  the  cost  of  repairing  exceeded  it.  So,  under  all  the  cir- 
cumstances, we  are  of  the  opinion  that  there  was  no  reversible  error 
in  admitting  the  testimony  embraced  in  the  third  and  fourth  bills  of 
exception,  and  that  the 'plaintift"s  second  prayer  was  sufficiently 
guarded  to  prevent  doing  the  defendant  injustice.  As  the  testimony 
shows  that  the  injury  to  the  land  is  not  only  of  a  permanent  char- 
acter, but  depreciates  the  value  considerably  more  than  one-half, 
which  of  itself  must  affect  the  value  of  the  house,  and  as  it  also 
shows,  with  no  evidence  to  the  contrary,  that  the  house  was  perma- 
nently injured,  and  was  still  continuing  to  develop  such  conditions 
as  to  make  repairs  of  little,  if  of  any,  use,  we  are  of  the  opinion  that 
the  difference  between  the  market  value  of  the  premises  (taken  as  a 
whole)  before  the  injury  and  their  present  market  value  in  so  far  as 
the  jury  found  it  "has  been  reduced  by  injuries  to  the  surface  and  to 
the  improvements  thereon"  was  the  correct  measure  of  damages.  It 
follows  that  the  judgment  will  be  affirmed. 

Judgment  affirmed,  the  appellant  to  pay  the  costs,  above  and 
below. 


50 — MixiisG  Law 


APPENDIX 


TITLE  XXXII,  CHAPTER  6,  REVISED  STATUTES. 

Mineral  Lands  Reserved. 

Sec.  2318.  In  all  cases  lands  valuable  for  mineral  shall  be  reserved  from 
sale,  except  as  otherwise  expresslj'  directed  by  law. 

Mineral  Lands  Open  to  Purchase  by  Citizens. 

Sec.  2319.  All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and 
open  to  exploration  and  purchase,  and  the  lands  in  which  they  are  found  to 
occupation  and  purchase,  by  citizens  of  the  United  States  and  those  who 
have  declared  their  intention  to  become  such,  under  regulations  prescribed  by 
law,  and  according  to  the  local  customs  or  rules  of  miners  in  the  several  min- 
ing districts,  so  far  as  the  same  are  applicable  and  not  inconsistent  with  the 
laws  of  the  United  States. 

Length  of  Mining  Claims  Upon  Veins  or  Lodes. 

Sec.  2320.  ^Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock  in 
place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable  de- 
posits, heretofore  located,  shall  be  governed  as  to  length  along  the  vein  or 
lode  by  the  customs,  regulations,  and  laws  in  force  at  the  date  of  their  loca- 
tion. A  mining  claim  located  after  the  tenth  day  of  May,  eighteen  hundred 
and  seventy-two,  whether  located  by  one  of  more  persons,  may  equal,  but 
shall  not  exceed,  one  thousand  five  hundred  feet  in  length  along  the  vein  or 
lode;  but  no  location  of  a  mining  claim  shall  be  made  until  the  discovery  of 
the  vein  or  lode  within  the  limits  of  the  claim  located.  No  claim  shall  extend 
more  than  three  hundred  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  nor  shall  any  claim  be  limited  by  any  mining  regulation  to  less  than 
twenty-five  feet  on  each  side  of  the  middle  of  the  vein  at  the  surface,  except 
where  adverse  rights  existing  on  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  render  such  limitation  necessary.  The  end  lines  of  each  claim 
shall  be  parallel  to  each  other. 

Proof  of  Citizenship. 

Sec.  2321.  Proof  of  citizenship,  under  this  chapter,  may  consist,  in  the  case 
of  an  individual,  of  his  own  affidavit  thereof ;  in  the  case  of  an  association 
of  persons  unincorporated,  of  the  affidavit  of  their  authorized  agent,  made 
on  his  own  knowledge  or  upon  information  and  belief ;  and  in  the  case  of  a 
corporation  organized  under  the  laws  of  the  United  States,  or  of  any  State 
or  Territory  thereof,  by  the  filing  of  a  certified  copy  of  their  charter  or  cer- 
tificate of  incorporation. 

786 


MINERAL   LAWS.  787 

Locators'  Rights  of  Possession  and  Enjoyment. 

Sec.  2322.  The  locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge,  situated  on  the 
public  domain,  their  heirs  and  assigns,  where  no  adverse  claim  exists  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as  they  comply 
with  the  laws  of  the  United  States,  and  with  State,  Territorial,  and  local  reg- 
ulations not  in  conflict  with  the  laws  of  the  United  States  governing  their 
possessory  title,  shall  have  the  exclusive  right  of  possession  and  enjoyment 
of  all  the  surface  included  within  the  lines  of  their  locations,  and  of  all  veins, 
lodes,  and  ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface  lines  extended  downward  vertically,  although  such 
veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their  course 
downward  as  to  extend  outside  the  vertical  side  lines  of  such  surface  loca- 
tions. But  their  right  of  possession  to  such  outside  parts  of  such  veins  or 
ledges  shall  be  confined  to  such  portions  thereof  as  lie  between  vertical  planes 
drawn  downward  as  above  described,  through  the  end  lines  of  their  locations, 
so  continued  in  their  own  direction  that  such  planes  will  intersect  such  ex- 
terior parts  of  such  veins  or  ledges.  And  nothing  in  this  section  shall  author- 
ize the  locator  or  possessor  of  a  vein  or  lode  which  extends  in  its  downward 
course  beyond  the  vertical  lines  of  his  claim  to  enter  upon  the  surface  of  a 
claim  owned  or  possessed  by  another. 

Owners  of  Tunnels,  Rights  of. 

Sec.  2323.  Where  a  tunnel  is  run  for  the  development  of  a  vein  or  lode, 
or  for  the  discovery  of  mines,  the  owners  of  such  tunnel  shall  have  the  right 
of  possession  of  all  veins  or  lodes  within  three  thousand  feet  from  the  face 
of  such  tunnel  on  the  line  thereof,  not  previously  known  to  exist,  discovered 
in  such  tunnel,  to  the  same  extent  as  if  discovered  from  the  surface;  and 
locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the 
surface,  made  by  other  parties  after  the  commencement  of  the  tunnel,  and 
while  the  same  is  being  prosecuted  with  reasonable  diligence,  shall  be  invahd, 
but  failure  to  prosecute  the  work  on  the  tunnel  for  six  months  shall  be  con- 
sidered as  an  abandonment  of  the  right  to  all  undiscovered  veins  on  the  line 
of  such  tunnel. 

Regulations  Made  by  Miners. 

Sec.  2324.  The  miners  of  each  mining  district  may  make  regulations  not 
in  conflict  with  the  laws  of  the  United  States,  or  with  the  laws  of  the  State 
or  Territory  in  which  the  district  is  situated,  governing  the  location,  manner 
of  recording,  amount  of  work  necessary  to  hold  possession  of  a  mining  claim, 
subject  to  the  following  requirements:  The  location  must  be  distinctly 
marked  on  the  ground  so  that  its  boundaries  can  be  readily  traced.  All  rec- 
ords of  mining  claims  hereafter  made  shall  contain  the  name  or  names  of  the 
locators,  the  date  of  the  location,  and  such  a  description  of  the  claim  or 
claims  located  bv  reference  to  some  natural  object  or  permanent  monument 
as  will  identifv  the  claim.  On  each  claim  located  after  the  tenth  day  of  :\Iay, 
eighteen  hundred  and  seventy-two.  and  until  a  patent  has  been  issued  there- 
fo^r,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed  or 
improvements  made  during. each  year.  On  all  claims  located  prior  to  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  ten  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  by  the  tenth  day  of  June, 
eighteen  hundred  and  seventy-four,  and  each  year  thereafter,  for  each  one 
htindred  feet  in  length  along  the  vein  until  a  patent  has  been  issued  therefor ; 
but  where  such  claims  are  held  in  common,  such  expenditure  may  be  made 
upon  any  one  claim :  and  upon  a  failure  to  comply  with  these  conditions  the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to  relocation 
in  the  same  manner  as  if  no  location  of  the  same  had  ever  been  made,  pro- 


788  APPENDIX. 

vided  that  the  original  locators,  their  heirs,  assigns,  or  legal  representatives, 
have  not  resumed  work  upon  the  claim  after  failure  and  before  such  location. 
Upon  the  failure  of  any  one  of  several  co-owners  to  contribute  his  propor- 
tion of  the  expenditures  required  hereby,  the  co-owners  who  have  perforrned 
the  labor  or  made  the  improvements  may,  at  the  expiration  of  the  year,  give 
such  delinquent  co-owner  personal  notice  in  writing  or  notice  by  publication 
in  the  newspaper  published  nearest  the  claim  for  at  least  once  a  week  for 
ninety  days,  and  if  at  the  expiration  of  ninety  days  after  such  notice  in  WTit- 
ing  or  by  publication  such  delinquent  should  fail  or  refuse  to  contribute  his 
proportion  of  the  expenditure  required  by  this  section  his  interest  in  the-claim 
shall  become  the  property  of  his  co-owners  who  have  made  the  required  ex- 
penditures. 

Patents  for  Mineral  lands,  how  obtained. 

Sec.  2325.  A  patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner :  Any  person,  association,  or  cor- 
poration authorized  to  locate  a  claim  under  this  chapter,  having  claimed  and 
located  a  piece  of  land  for  such  purposes,  who  has,  or  have,  complied  with 
the  terms  of  this  chapter,  may  file  in  the  proper  land  office  an  application  for 
a  patent,  under  oath,  showing  such  compliance,  together  with  a  plat  and  field 
notes  of  the  claim  or  claims  in  common,  made  by  or  under  the  direction  of 
the  United  States  surveyor-general,  showing  accurately  the  boundaries  of  the 
claim  or  claims,  which  shall  be  distinctly  marked  by  monuments  on  the 
ground,  and  shall  post  a  copy  of  such  plat,  together  with  a  notice  of  such  ap- 
plication for  a  patent,  in  a  conspicuous  place  on  the  land  embraced  in  such 
plat  previous  to  the  filing  of  the  application  for  a  patent,  and  shall  file  an 
affidavit  of  at  least  two  persons  that  such  notice  has  been  duly  posted,  and 
shall  file  a  copy  of  the  notice  in  such  land  office,  and  shall  thereupon  be  en- 
titled to  a  patent  for  the  land,  in  the  manner  following :  The  register  of  the 
land  office,  upon  the  filing  of  such  application,  plat,  field  notes,  notices,  and 
affidavits,  shall  publish  a  notice  that  such  application  has  been  made,  for  the 
period  of  sixty  days,  in  a  newspaper  to  be  by  him  designated  as  published 
nearest  to  such  claim;  and  he  shall  also  post  such  notice  in  his  office  for  the 
same  period.  The  claimant  at  the  time  of  filing  this  appplication,  or  at  any 
time  thereafter,  within  the  sixty  da^'s  of  publication,  shall  file  with  the  reg- 
ister a  certificate  of  the  United  States  surveyor-general  that  five  hundred  dol- 
lars' worth  of  labor  has  been  expended  or  improvements  made  upon  the  claim 
by  himself  or  grantors ;  that  the  plat  is  correct,  with  such  further  descrip- 
tion by  such  reference  to  natural  objects  or  permanent  monuments  as  shall 
identify  the  claim,  and  furnish  an  accurate  description  to  be  incorporated  in 
the  patent.  At  the  expiration  of  the  sixty  days  of  publication  the  claimant 
shall  file  his  affidavit,  showing  that  the  plat  and  notice  have  been  posted  in  a 
conspicuous  place  on  the  claim  during  such  period  of  publication.  If  no  ad- 
verse claim  shall  have  been  filed  with  the  register  and  the  receiver  of  the 
proper  land  office  at  the  expiration  of  the  sixty  days  of  publication,  it  shall 
be  assumed  that  the  applicant  is  entitled  to  a  patent,  upon  the  payment  to  the 
proper  officer  of  five  dollars  per  acre,  and  that  no  adverse  x:laim  exists ;  and 
thereafter  no  objection  from  third  parties  to  the  issuance  of  a  patent  shall  be 
heard,  except  it  be  shown  that  the  applicant  has  failed  to  comply  with  the 
terms  of  this  chapter. 

Adverse  Claim,  Proceedings  on. 

Sec.  2326.  Where  an  adverse  claim  is  filed  during  the  period  of  publica- 
tion, it  shall  be  upon  oath  of  the  person  or  persons  making  the  same,  and 
shall  show  the  nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all 
proceedings,  except  the  publication  of  notice  and  making  and  filing  of  the 
affidavit  thereof,  shall  be  stayed  until  the  controversy  shall  have  been  settled 
or  decided  by  a  court  of  compentent  jurisdiction,  or  the  adverse  claim  waived. 


MINERAL    LAWS.  7^9 

It  shall  be  the  duty  of  the  adverse  claimant,  within  thirty  days  after  filing 
his  claim,  to  commence  proceedings  in  a  court  of  competent  jurisdiction,  to 
determine  the  question  of  the  right  of  possession,  and  prosecute  the  same 
with  reasonable  diligence  to  final  judgment;  and  a  failure  so  to  do  shall  be  a 
waiver  of  his  adverse  claim.  After  such  judgment  shall  have  been  rendered, 
the  party  entitled  to  the  possession  of  the  claim,  or  any  portion  thereof,  may, 
without  giving  further  notice,  file  a  certified  copy  of  the  judgment-roll  with 
the  register  of  the  land  office,  together  with  the  certificate  of  the  surveyor- 
general  that  the  requisite  amount  of  labor  has  been  expended  or  improve- 
ments made  thereon,  and  the  description  required  in  other  cases,  and  shall 
pay  to  the  receiver  five  dollars  per  acre  for  his  claim,  together  with  the 
proper  fees,  whereupon  the  whole  proceedings  and  the  judgment-roll  shall  be 
certified  by  the  register  to  the  Commissioner  of  the  General  Land  Office,  and 
a  patent  shall  issue  thereon  for  the  claim,  or  such  portion  thereof  as  the  ap- 
plicant shall  appear,  from  the  decision  of  the  court,  to  rightly  possess.  If  it 
appears  from  the  decision  of  the  court  that  several  parties  are  entitled  to 
separate  and  dififerent  portions  of  the  claim,  each  party  may  pay  for  his  por- 
tion of  the  claim  with  the  proper  fees,  and  file  the  certificate  and  description 
by  the  surveyor-general,  whereupon  the  register  shall  certify  the  proceedings 
and  judgment-roll  to  the  Commissioner  of  the  General  Land  Office,  as  in  the 
preceding  case,  and  patents  shall  issue  to  the  several  parties  according  to 
their  respective  rights.  Nothing  herein  contained  shall  be  construed  to  pre- 
vent the  alienation  of  a  title  conveyed  by  a  patent  for  a  mining  claim  to  any 
person  whatever. 

Description  of  Mining  Vein  or  Lode  Claims — Monuments. 

Sec.  2327.  The  description  of  vein  or  lode  claims  upon  surveyed  lands 
shall  designate  the  location  of  the  claims  with  reference  to  the  lines  of  the 
public  survey,  but  need  not  conform  therewith:  but  where  patents  have  been 
or  shall  be  issued  for  claims  upon  unsurveyed  lands,  the  surveyors-general, 
in  extending  the  public  survey,  shall  adjust  the  same  to  the  boundaries  of 
said  patented  claims  so  as  in  no  case  to  interfere  with  or  change  the  true  loca- 
tion of  such  claims  as  thev  are  officially  established  upon  the  ground.  Where 
patents  have  issued  for  mineral  lands,  those  lands  only  shall  be  segregated 
and  shall  be  deemed  to  be  patented  which  are  bounded  by  the  lines  actually 
marked,  defined,  and  established  upon  the  ground  by  the  monuments  of  the 
official  survey  upon  which  the  patent  grant  is  based,  and  surveyors-general  in 
executing  subsequent  patent  surveys,  whether  upon  surveyed  or  unsurveyed 
lands,  shall  be  governed  accordingly.  The  said  monuments  shall  at  all  times 
constitute  the  highest  authority  as  to  what  land  is  patented,  and  in  case  of 
any  conflict  between  the  said  monuments  of  such  patented  claims  and  the  de- 
scriptions of  said  claims  in  the  patents  issued  therefor  the  monuments  on  the 
ground  shall  govern,  and  erroneous  or  inconsistent  descriptions  or  calls  m 
the  patent  descriptions  shall  give  way  thereto. 

Pending  Applications;   Existing  Rights. 

Sec.  2328.  Applications  for  patents  for  mining  claims  under  former  laws 
now  pending  may  be  prosecuted  to  a  final  decision  in  the  General  Land-Office; 
but  in  such  cases  where  adverse  rights  are  not  affected  thereby,  patents  may 
issue  in  pursuance  of  the  provisions  of  this  chapter ;  and  all  patents  for  min- 
ing claims  upon  veins  or  lodes  heretofore  issued  shall  convey  all  the  rights 
and  privileges  conferred  by  this  chapter  where  no  adverse  rights  existed  on 
the  tenth  day  of  May,  eighteen  hundred  and  seventy-two. 

Conformity  of  Placer  Claims  to  Surveys,  Limit  of. 

Sec.  2329.  Claims  usually  called  "placers."  including  all  forms  of  deposit, 
excepting  veins  of  quartz,  or  other  rock  in  place,  shall  be  subject  to  entry  and 


790  APPENDIX. 

patent,  under  like  circumstances  and  conditions,  and  upon  similar  proceed- 
ings, as  are  provided  for  vein  or  lode  claims ;  but  where  the  lands  have  been 
previously  surveyed  by  the  United  States,  the  entry  in  its  exterior  limits  shall 
conform  to  the  legal  subdivisions  of  the  public  lands. 

Subdivisions  of  Ten- Acre  Tracts;  Maximum  of  Placer  Locations. 

Sec.  2330.  Legal  subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre 
tracts ;  and  two  or  more  persons,  or  associations  of  persons,  having  contigu- 
ous claims  of  any  size,  although  such  claims  may  be  less  than  ten  acres  each, 
may  make  joint  entry  thereof;  but  no  location  of  a  placer  claim,  made  after 
the  ninth  day  of  July,  eighteen  hundred  and  seventy,  shall  exceed  one  hun- 
dred and  sixty  acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys ;  and  nothing  in  this  sec- 
tion contained  shall  defeat  or  impair  any  bona  tide  preemption  or  homestead 
claim  upon  agricultural  lands,  or  authorize  the  sale  of  the  improvements  of 
any  bona  fide  settler  to  any  purchaser. 

Conformity  of  Placer  Claims  to  Surveys,  Limitation  of  Claims. 

Sec.  2331.  Where  placer  claims  are  upon  surveyed  lands,  and  conform  to 
legal  subdivisions,  no  further  survey  or  plat  shall  be  required,  and  all  placer- 
mining  claims  located  after  the  tenth  day  of  May,  eighteen  hundred  and  sev- 
enty-two, shall  conform  as  near  as  practicable  with  the  United  States  system 
of  public-lands  surveys,  and  the  rectangular  subdivisions  of  such  surveys,  and 
no  such  location  shall  include  more  than  twenty  acres  for  each  individual 
claimant;  but  where  placer  claims  can  not  be  conformed  to  legal  subdivisons, 
survey  and  plat  shall  be  made  as  on  unsurveyed  lands ;  and  where  by  the 
segregation  of  mineral  lands  in  any  legal  subdivision  a  quantity  of  agricul- 
tural land  less  than  fort\^  acres  remains,  such  fractional  portion  of  argricul- 
tural  land  may  be  entered  by  any  party  qualified  by  law,  for  homestead  or  pre- 
emption purposes. 

What  Evidence  of  Possession,  &c.,  to  Establish  a  Right  to  a  Patent. 

Sec  2332.  Where  such  person  or  association,  they  and  their  grantors,  have 
held  and  worked  their  claims  for  a  period  equal  to  the  time  prescribed  by  the 
statute  of  limitations  for  mining  claims  of  the  State  or  Territory  where  the 
same  may  be  situated,  evidence  of  such  possession  and  working  of  the  claims 
for  such  period  shall  be  sufficient  to  establish  a  right  to  a  patent  thereto  un- 
der this  chapter,  in  the  absence  of  any  adverse  claim ;  but  nothing  in  this 
chapter  shall  be  deemed  to  impair  any  lien  which  may  have  attached  in  any 
way  whatever  to  any  mining  claim  or  property  thereto  attached  prior  to  the 
issuance  of  a  patent. 

Proceedings  for  Patent  for  Placer  Claim,  &c. 

Sec.  2333.  Where  the  same  person,  association,  or  corporation  is  in  pos- 
session of  a  placer  claim,  and  also  a  vein  or  lode  included  within  the  bound- 
aries thereof,  application  shall  be  made  for  a  patent  for  the  placer  claim,  with 
the  statement  that  it  includes  such  vein  or  lode,  and  in  such  case  a  patent 
shall  issue  for  the  placer  claim,  subject  to  the  provisions  of  this  chapter,  in- 
cluding such  vein  or  lode,  upon  the  payment  of  five  dollars  per  acre  for  such 
vein  or  lode  claim  and  twenty-five  feet  of  surface  on  each  side  thereof.  The 
remainder  of  the  placer  claim  or  any  placer  claim  not  embracing  any  vein  or 
lode  claim  shall  be  paid  for  at  the  rate  of  two  dollars  and  fifty  cents  per  acre, 
together  with  all  costs  of  proceedings ;  and  where  a  vein  or  lode,  such  as  is 
described  in  section  twenty-three  hundred  and  twenty,  is  known  to  exist  with- 
in the  boundaries  of  a  placer  claim,  an  application  for  a  patent  for  such  placer 
claim  which  does  not  include  an  application  for  the  vein  or  lode  claim  shall  be 
construed  as  a  conclusive  declaration  that  the  claimant  of  the  placer  claim 


MINERAL    LAWS.  79^ 

has  no  right  of  possession  of  the  vein  or  lode  claim ;  but  where  the  existence 
of  a  vein  or  lode  in  a  placer  claim  is  not  known,  a  patent  for  the  placer  claim 
shall  convey  all  valuable  mineral  and  other  deposits  within  the  boundaries 
thereof. 

Surveyor  General  to  Appoint  Surveyors  of  Mining  Claims,  &c. 

Sec.  2334.  The  surveyor-general  of  the  United  States  may  appoint  in  each 
land  district  containing  mineral  lands  as  many  competent  surveyors  as  shall 
applv  for  appointment  to  survey  mining  claims.  The  expenses  of  the  survey 
of  vein  or  lode  claims,  and  the  survey  and  subdivision  of  placer  claims  into 
smaller  quantities  than  one  hundred  and  sixty  acres,  together  with  the  cost 
of  publication  of  notices,  shall  be  paid  by  the  applicants,  and  they  shall  be  at 
libertv  to  obtain  the  same  at  the  most  reasonable  rates,  and  they  shall  also  be 
at  liberty  to  emplov  any  United  States  deputy  surveyor  to  make  the  survej'. 
The  Commissioner' of  the  General  Land  Office  shall  also  have  power  to  es- 
tablish the  maximum  charges  for  surveys  and  publication  of  notices  under 
this  chapter :  and.  in  case  of  excessive  charges  for  publication,  he  may  desig- 
nate any  newspaper  published  in  a  land  district  where  mines  are  situated  for 
the  publication  of  mining  notices  in  such  district,  and  fix  the  rates  to  be 
charo-ed  by  such  paper;  and,  to  the  end  that  the  Commissioner  may  be  fully 
informed  on  the  Subject,  each  applicant  shall  file  with  the  register  a  sworn 
statement  of  all  charges  and  fees  paid  by  such  applicant  for  publication  and 
surveys  together  with  all  fees  and  moneys  paid  the  register  and  the  receiver 
of  the  land  office,  which  statement  shall  be  transmitted,  with  the  other  papers 
in  the  case,  to  the  Commissioner  of  the  General  Land  Office. 

Verification  of  Affidavits,  &c. 

Sec  2335.  All  affidavits  required  to  be  made  under  this  chapter  may  be 
verified  before  anv  officer  authorized  to  administer  oaths  within  the  land 
district  where  the  claims  may  be  situated,  and  all  testimony  and  proofs  may 
be  taken  before  anv  such  officer,  and,  when  duly  certified  by  the  officer  taking 
the  same,  shall  have  the  same  force  and  effect  as  if  taken  before  the  regis- 
ter and  receiver  of  the  land  office.  In  cases  of  contest  as  to  the  mineral  or 
agricultural  character  of  land,  the  testimony  and  proofs  may  be  taken  as 
herein  provided  on  personal  notice  of  at  least  ten  days  to  the  opposing  party; 
or  if  such  partv  can  not  be  found,  then  bv  publication  of  at  least  once  a  week 
for  thirty  davs  in  a  newspaper,  to  be  designated  by  the  register  of  the  land 
office  as  published  nearest  to  the  location  of  such  land;  and  the  register  shall 
require  proof  that  such  notice  has  been  given. 

Where  Veins  Intersect,  &c. 

Sec.  2336.  Where  two  or  more  veins  intersect  or  cross  each  other,  priority 
of  titie  shall  govern,  and  such  prior  location  shall  be  entitled  to  all  ore  or 
mineral  contained  within  the  space  of  intersection ;  but  the  subsequent  loca- 
tion shall  have  the  right  of  way  through  the  space  of  intersection  for  the 
purposes  of  the  convenient  working  of  the  mine.  And  where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the  vein  below  the  point  of 
union,  including  all  the  space  of  intersection. 

Patents  for  Nonmineral  Lands,  &c. 

Sec.  2337.  Where  nonmineral  land  not  contiguous  to  the  vein  or  lode  is 
used  or  occupied  bv  the  proprietor  of  such  vein  or  lode  for  mining  or  milling 
purposes,  such  nonadjacent  surface  ground  may  be  embraced  and  included  in 
an  application  for  a  patent  for  such  vein  or  lode,  and  the  same  may  be  pat- 
ented therewith,  subject  to  the  same  preliminary  requirements  as  to  survey 
and  notice  as  are  applicable  to  veins  or  lodes ;  but  no  location  hereafter  made 
of  such  nonadjacent  land  shall  exceed  five  acres,  and  payment  for  the  same 


792 


APPENDIX. 


must  be  made  at  the  same  rate  as  fixed  by  this  chapter  for  the  superficies  of 
the  lode.  The  owner  of  a  quartz  mill  or  reduction  works,  not  owning  a  mine 
in  connection  therewith,  may  also  receive  a  patent  for  his  mill  site,  as  pro- 
vided in  this  section. 

What  Conditions  of  Sale  May  Be  Made  by  Local  Legislature, 

Sec.  2338.  As  a  condition  of  sale,  in  the  absence  of  necessary  legislation 
by  Congress,  the  local  legislature  of  any  State  or  Territory  may  provide  rules 
for  working  mines,  involving  easements,  drainage,  and  other  necessary  means 
to  their  complete  development ;  and  those  conditions  shall  be  fully  expressed 
in  the  patent. 

Vested  Rights  to  Use  of  Water  for  Mining,  &c.;  Right  of  Way  for  Canals. 

Sec.  2339.  Whenever,  by  priority  of  possession,  rights  to  the  use  of  water 
for  mining,  agricultural,  manufacturing,  or  other  purposes,  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknowledged  by  the  local  customs, 
laws,  and  the  decisions  of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same ;  and  the  right  of  way 
for  the  construction  of  ditches  and  canals  for  the  purposes  herein  specified 
is  acknowledged  and  confirmed;  but  whenever  any  person,  in  the  construc- 
tion of  any  ditch  or  canal,  injures  or  damages  the  possession  of  any  settler 
on  the  public  domain,  the  party  committing  such  injury  or  damage  shall  be 
liable  to  the  party  injured  for  such  injury  or  damage. 

Patents,  Preemptions  and  Homesteads  Subject  to  Vested  and  Accrued  Water 
Rights. 

Sec.  2340.  All  patents  granted,  or  ])reemption  or  homesteads  allowed,  shall 
be  subject  to  any  vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoirs  used  in  connection  with  such  water  rights,  as  may  have  been  ac- 
quired under  or  recognized  by  the  preceding  section. 

Mineral  Lands  in  Vv^'hich  No  Valuable  Mines  Are  Discovered  Open  to  Home- 
steads. 

Sec.  2341.  Wherever,  upon  the  lands  heretofore  designated  as  mineral 
lands,  which  have  been  excluded  from  survey  and  sale,  there  have  been 
homesteads  made  by  citizens  of  the  United  States,  or  persons  who  have  de- 
clared their  intention  to  become  citizens,  which  homesteads  have  been  made, 
improved,  and  used  for  agricultural  purposes,  and  upon  which  there  have  been 
no  valuable  mines  of  gold,  silver,  cinnabar,  or  copper  discovered,  and  which 
are  properly  agricultural  lands,  the  settlers  or  owners  of  such  homesteads 
shall  have  a  right  of  preemption  thereto,  and  shall  be  entitled  to  purchase  the 
same  at  the  price  of  one  dollar  and  twenty-five  cents  per  acre,  and  in  quantity 
not  to  exceed  one  hundred  and  sixty  acres ;  or  they  may  avail  themselves  of 
the  provisions  of  chapter  five  of  this  Title,  relating  to  "Homesteads." 

Mineral  Lands,  How  Set  Apart  as  Agricultural  Lands. 

Sec.  2342.  Upon  the  survey  of  the  lands  described  in  the  preceding  section, 
the  Secretary  of  the  Interior  may  designate  and  set  apart  such  portions  of 
the  same  as  are  clearly  agricultural  lands,  which  lands  shall  thereafter  be  sub- 
ject to  preemption  and  sale  as  other  public  lands,  and  be  subject  to  all  the 
laws  and  regulations  applicable  to  the  same. 

Additional  Land  Districts  and  Officers,  Power  of  the  President  to  Provide. 

Sec.  2343.  The  President  is  authorized  to  establish  additional  land  dis- 
tricts, and  to  appoint  the  necessary  officers  under  existing  laws,  wherever  he 
may  deem  the  same  necessary  for  the  public  convenience  in  executing  the  pro- 
visions of  this  chapter. 


MINERAL    LAWS.  793 

Provisions  of  This  Chapter  Not  to  Affect  Certain  Rights. 

Sec.  2344.  Nothing  contained  in  this  chapter  shall  be  construed  to  impair, 
in  any  way,  rights  or  interests  in  mining  property  acquired  imder  existing 
laws ;  nor  to  affect  the  provisions  of  the  act  entitled  "An  act  granting  to  A. 
Sutro  the  right  of  way  and  other  privileges  to  aid  in  the  construction  of  a 
drainage  and  exploring  tunnel  to  the  Comstock  lode,  in  the  State  of  Nevada," 
approved  July  twenty-tive,  eighteen  hundred  and  sixty-six. 

Mineral  Lands  in  Certain  States  Excepted. 

Sec.  2345.  The  provisions  of  the  preceding  sections  of  this  chapter  shall 
not  apply  to  the  mineral  lands  situated  in  the  States  of  Michigan,  Wisconsin, 
and  Minnesota,  which  are  declared  free  and  open  to  exploration  and  pur- 
chase, according  to  legal  subdivisions,  in  like  manner  as  before  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two.  And  any  bona  fide  entries  of 
such  lands  within  the  States  named  since  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  may  be  patented  without  reference  to  any  of  the  fore- 
going provisions  of  this  chapter.  Such  lands  shall  be  offered  for  public  sale 
in  the  same  manner,  at  the  sme  minimum  price,  and  under  the  same  rights 
of  preemption  as  other  public  lands. 

Grant  of  Lands  to  States  or  Corporations  Not  to  Include  Mineral  Lands. 

Sec.  2346.  No  act  passed  at  the  first  session  of  the  Thirty-eighth  Congress, 
granting  lands  to  States  or  corporations  to  aid  in  the  construction  of  roads 
or  for  other  purposes,  or  to  extend  the  time  of  grants  made  prior  to  the  thir- 
tieth day  of  January,  eighteen  hundred  and  sixty-five,  shall  be  so  construed 
as  to  embrace  mineral  lands,  which  in  all  cases  are  reserved  exclusively  to 
the  United  States,  unless  otherwise  specially  provided  in  the  act  or  acts  mak- 
ing the  grant. 

SOME  OF  THE  ACTS  OF  CONGRESS  PASSED  STJBSEGUENT  TO  THE  RE- 
VISED STATUTES. 

An  act  to  amend  the  act  entitled  "An  act  to  promote  the  development  of 
the  mining  resources  of  the  United  States,"  passed  May  tenth,  eighteen 
hundred  and  seventy-two. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  the  fifth 
section  of  the  act  entitled  "An  act  to  promote  the  development  of  the  mining 
resources  of  the  United  States,"  passed  May  tenth,  eighteen  hundred  and 
seventy-two,  which  requires  expenditures  of  labor  and  improvements  on 
claims  located  prior  to  the  passage  of  said  act,  are  hereby  so  amended  that 
the  time  for  the  first  annual  expenditure  on  claims  located  prior  to  the  pass- 
age of  said  act  shall  be  extended  to  the  first  day  of  January,  eighteen  hun- 
dred and  seventy-five.     [Approved  June  6,  1874.] 

An  act  to  amend  section  two  thousand  three  hundred  and  twenty-four  of 
the  Revised  Statutes,  relating  to  the  development  of  the  mining  re- 
sources of  the  United  States. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  section  two  thousand  three 
hundred  and  twenty-four  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may  run  a  tunnel  for  the 
purpose  of  developing  a  lode  or  lodes,  owned  by  said  person  or  company,  the 
money  so  expended  in  said  tunnel  shall  be  taken  and  considered  as  expended 
on  said  lode  or  lodes,  whether  located  prior  to  or  since  the  passage  of  said 
act;  and  such  person  or  company  shall  not  be  required  to  perform  work  on 


794  APPENDIX. 

the  surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as  required  by 
said  act.     [Approved  February  11,  1875.] 

An  act  authorizing  the  citizens  of  Colorado,  Nevada,  and  the  Territories  to 
fell  and  remove  timber  on  the  public  domain  for  mining  and  domestic 
purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  citizens  of  the  United 
States  and  other  persons,  bona  fide  residents  of  the  State  of  Colorado,  or 
Nevada,  or  either  of  the  Territories  of  New  Mexico,  Arizona,  Utah,  Wyo- 
ming, Dakota,  Idaho,  or  Montana,  and  all  other  mineral  districts  of  the  United 
States,  shall  be,  and  are  hereby,  authorized  and  permitted  to  fell  and  remove, 
for  building,  agricultural,  mining,  or  other  domestic  purposes,  any  timber  or 
other  trees  growing  or  being  on  the  public  lands,  said  lands  being  mineral, 
and  not  subject  to  entry  under  existing  laws  of  the  United  States,  except  for 
mineral  entry,  in  either  of  said  States,  Territories,  or  districts  of  which  such 
citizens  or  persons  may  be  at  the  time  bona  fide  residents,  subject  to  such 
rules  and  regulations  as  the  Secretary  of  the  Interior  may  prescribe  for  the 
protection  of  the  timber  and  of  the  undergrowth  growing  upon  such  lands, 
and  for  other  purposes  :  Provided,  The  provisions  of  this  act  shall  not  ex- 
tend to  railroad  corporations. 

Sec.  2.  That  it  shall  be  the  duty  of  the  register  and  the  receiver  of  any 
local  land  office  in  whose  district  any  mineral  land  may  be  situated  to  ascer- 
tain from  time  to  time  whether  any  timber  is  being  cut  or  used  upon  any  such 
lands,  except  for  the  purposes  authorized  by  this  act,  within  their  respective 
land  districts;  and,  if  so,  they  shall  immediately  notify  the  Commissioner  of 
the  General  Land  Office  of  that  fact ;  and  all  necessary  expenses  incurred  in 
making  such  proper  examinations  shall  be  paid  and  allowed  such  register  and 
receiver  in  making  up  their  next  quarterly  accounts. 

Sec.  3.  Any  person  or  persons  who  shall  violate  the  provisions  of  this  act, 
or  any  rules  and  regulations  in  pursuance  thereof  made  by  the  Secretary  of 
the  Interior,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction, 
shall  be  fined  in  any  sum  not  exceeding  five  hundred  dollars,  and  to  which 
may  be  added  imprisonment  for  anv  term  not  exceeding  six  months.  [Ap- 
proved June  3,  1878.] 

An  act  to  amend  sections  twenty-three  hundred  and  twenty-four  and  twen- 
ty-three hundred  and  twenty-five  of  the  Revised  Statutes  of  the  United 
States  concerning  mineral  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  section  twenty-three  hundred 
and  twenty-five  of  the  Revised  Statutes  of  the  United  States  be  amended  by 
adding  thereto  the  following  words :  "Provided,  That  where  the  claimant 
for  a  patent  is  not  a  resident  of  or  within  the  land  district  wherein  the  vein, 
lode,  ledge,  or  deposit  sought  to  be  patented  is  located,  the  application  for 
patent  and  the  affidavits  required  to  be  made  in  this  section  by  the  claimant 
for  such  patent  may  be  made  by  his,  her,  or  its  authorized  agent,  where  said 
agent  is  conversant  with  the  facts  sought  to  be  established  by  said  affidavits  : 
And  provided,  That  this  section  shall  apply  to  all  applications  now  pending 
for  patents  to  mineral  lands." 

Sec.  2.  That  section  twenty-three  hundred  and  Lwenty-four  of  the  Revised 
Statutes  of  the  United  States  be  amended  by  adding  the  following  words  : 
"Provided,  That  the  period  within  which  the  work  required  to  be  done  an- 
nually on  all  unpatented  mineral  claims  shall  commence  on  the  first  day  of 
January  succeeding  the  date  of  location  of  such  claim,  and  this  section  shall 
apply  to  all  claims  located  since  the  tenth  day  of  Ma\%  anno  Domini  eighteen 
hundred  and  seventy-two.''     [Approved  January  22,  1880.] 


MINERAL    LAWS.  795 

An  act  to  amend  section  twenty-three  hundred  and  twenty-six  of  the  Re- 
vised Statutes  relating  to  suits  at  law  affecting  the  title  to  mining 
claims. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  if,  in  any  action  brought  pur- 
suant to  'section  twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes, 
title  to  the  ground  in  controversy  shall  not  be  established  by  either  party,  the 
iurv  shall  so  tind,  and  judgment  shall  be  entered  according  to  the  verdict 
In  such  case  costs  shall  not  be  allowed  to  either  party,  and  the  claimant  shall 
not  proceed  in  the  land  office  or  be  entitled  to  a  patent  for  the  ground  m  con- 
troversy until  he  shall  have  perfected  his  title.     [Approved  March  3,  1881. J 

An  act  to  amend  section  twenty-three  hundred  and  twenty-six  of  the  Re- 
vised Statutes  in  regard  to  mineral  lands,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  the  adverse  claim  required 
by  section  twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes  may 
be  verified  by  the  oath  of  any  dulv  authorized  agent  or  attorney  in  fact  of  the 
adverse  claimant  cognizant  of  the  facts  stated ;  and  the  adverse  claimant,  it 
residing  or  at  the  time  being  beyond  the  limits  of  the  district  wherein  the 
claim  is  situated,  mav  make  oath  to  the  adverse  claim  before  the  clerk  of  any 
court  of  record  of  the  United  States  or  the  State  or  Territory  where  the  ad- 
verse claimant  may  then  be,  or  before  any  notary  public  of  such  State  or  1  er- 

ritory. 

Sec.  2.  That  applicants  for  mineral  patents,  if  residing  beyond  the  limits 
of  the  district  wherein  the  claim  is  situated,  may  make  any  oath  or  affidavit 
required  for  proof  of  citizenship  before  the  clerk  of  any  court  of  record,  or 
before  anv  notarv  public  of  any  State  or  Territory.  [Approved  April  26, 
1882]. 

An  act  to  repeal  the  timber-culture  laws,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled, 

******* 

Sec.  16.  That  town-site  entries  may  be  made  by  incorporated  towns  and 
cities  on  the  mineral  lands  of  the  United  States,  but  no  title  shall  be  required 
bv  such  towns  or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or  lead, 
or  to  any  valid  mining  claim  or  possession  held  under  existing  law.  When 
mineral  veins  are  possessed  within  the  limits  of  an  incorporated  town  or  city, 
and  such  possession  is  recognized  by  local  authority  or  by  the  laws  of  the 
United  States,  the  title  to  town  lots  shall  be  subject  to  such  recognized  pos- 
session and  the  necessary  use  thereof,  and  when  entry  has  been  made  or  pat- 
ent issued  for  such  town  sites  to  such  incorporated  town  or  city,  the  possessor 
of  such  mineral  vein  may  enter  and  receive  patent  for  such  mineral  vein,  and 
the  surface  ground  appertaining  thereto  :  Provided,  That  no  entry  shall  be 
made  by  such  mineral-vein  claimant  for  surface  ground  where  the  owner  or 
occupier  of  the  surface  ground  shall  have  had  possession  of  the  same  before 
the  inception  of  the  title  of  the  mineral-vein  applicant. 

Sec.  17.  That  reservoir  sites  located  or  selected  and  to  be  located  and  se- 
lected under  the  provisions  of  "An  act  making  appropriations  for  sundry 
civil  expenses  of  the  Government  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  eighty-nine,  and  for  other  purposes,"  and  amendments 
thereto,  shall  be  restricted  to  and  shall  contain  only  so  much  land  as  is  actu- 
ally necessary  for  the  construction  and  maintenance  of  reservoirs,  excluding 
so  far  as  practicable  lands  occupied  by  actual  settlers  at  the  date  of  the  loca- 
tion of  said  reservoirs,  and  that  the  provisions  of  "An  act  making  appropria 
tions  for  sundry  civil  expenses  of  the  Government  for  the  fiscal  year  ending 


796  APPENDIX. 

June  thirtieth,  eighteen  hundred  and  ninety-one,  and  for  other  purposes," 
which  reads  as  follows,  viz. :  "No  person  who  shall  after  the  passage  of  this 
act  enter  upon  any  of  the  public  lands  with  a  view  to  occupation,  entry,  or 
settlement  under  any  of  the  land  laws  shall  be  permitted  to  acquire  title  to 
more  than  three  hundred  and  twenty  acres  in  the  aggregate  under  all  said 
laws,"  shall  be  construed  to  include  in  the  maximum  amount  of  lands  the 
title  to  which  is  permitted  to  be  acquired  by  one  person  only  agricultural 
lands  and  not  include  lands  entered  or  sought  to  be  entered  under  mineral 
land  laws.     [Approved  March  3,  1891.] 


An  act  to  authorize  the  entry  of  lands  chiefly  valuable  for  building  stone 
under  the  placer  mining  laws. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  any  person  authorized  to  en- 
ter lands  under  the  mining  laws  of  the  United  States  may  enter  lands  that 
are  chiefly  valuable  for  building  stone  under  the  provisions  of  the  law  in  rela- 
tion to  placer-mineral  claims :  Provided,  That  lands  reserved  for  the  benefit 
of  the  public  schools  or  donated  to  any  State  shall  not  be  suliject  to  entry  un- 
der this  act.     [Approved  August  4,  1892.] 

An  act  to  amend  section  numbered  twenty-three  hundred  and  twenty-four 
of  the  Revised  Statutes  of  the  United  States  relating  to  mining  claims. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  section 
numbered  twenty-three  hundred  and  twenty-four  of  the  Revised  Statutes  of 
the  United  States,  which  require  that  on  each  claim  located  after  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two,  and  until  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed 
or  improvements  made  during  each  year,  be  suspended  for  the  year  eighteen 
hundred  and  ninety-three,  so  that  no  mining  claim  which  has  been  regularly 
located  and  recorded  as  required  by  the  local  laws  and  mining  regulations 
shall  be  subject  to  forfeiture  for  nonperformance  of  the  annual  assessment 
for  the  year  eighteen  hundred  and  ninety-three :  Provided,  That  the  claim- 
ant or  claimants  of  any  mining  location,  in  order  to  secure  the  benefits  of 
this  act  shall  cause  to  be  recorded  in  the  office  where  the  location  notice  or 
certificate  is  filed  on  or  before  December  thirty-first,  eighteen  hundred  and 
ninety-three,  a  notice  that  he  or  they,  in  good  faith  intend  to  hold  and  work 
said  claim :  Provided,  however.  That  the  provisions  of  this  act  shall  not  ap- 
ply to  the  State  of  South  Dakota. 

This  act  shall  take  efTect  from  and  after  its  passage.  [Approved  Novem- 
ber 3,  1893.] 

An  act  to  amend  section  numbered  twenty-three  hundred  and  twenty-four 
of  the  Revised  Statutes  of  the  United  States  relating  to  mining  claims. 

Be  it  enacted  by  tlie  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  the  provisions  of  section 
numbered  twenty-three  hundred  and  twenty-four  of  the  Revised  Statutes  of 
the  United  States,  which  require  that  on  each  claim  located  after  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two,  and  until  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed 
or  improvements  made  during  each  year,  be  suspended  for  the  year  eighteen 
hundred  and  ninety-four,  so  that  no  mining  claim  which  has  been  reguarly 
located  and  recorded  as  required  by  the  local  laws  and  mining  regulations 
shall  be  subject  to  forfeiture  for  nonperformance  of  the  annual  assessment 
for  the  year  eighteen  hundred  and  ninety-four :  Provided,  That  the  claim- 
ant or  claimants  of  any  mining  location,  in  order  to  secure  the  benefits  of 


MINERAL    LAWS.  797 

this  act,  shall  cause  to  be  recorded  in  the  office  where  the  location  notice  or 
certificate  is  filed  on  or  before  December  thirty-first,  eighteen  hundred  and 
ninety-four,  a  notice  that  he  or  they  in  good  faith  intend  to  hold  and  work 
said  claim :  Provided,  liozvever,  That  the  provisions  of  this  act  shall  not  ap- 
ply to  the  State  of  South  Dakota. 

Sec.  2.  That  this  act  shall  take  effect  from  and  after  its  passage.  [Ap- 
proved July  18,  1894.] 

An  act  to  authorize  the  entry  and  patenting  of  lands  containing  petroleum 
and  other  mineral  oils  under  the  placer  mining  laws  of  the  United 
States. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  any  person  authorized  to  en- 
ter lands  under  the  mining  laws  of  the  United  States  may  enter  and  obtain 
patent  to  lands  containing  petroleum  or  other  mineral  oils,  and  chiefly  valu- 
able therefor,  under  the  provisions  of  the  laws  relating  to  placer  mineral 
claims :  Provided,  That  lands  containing  such  petroleum  or  other  mineral 
oils  which  have  heretofore  been  filed  upon,  claimed,  or  improved  as  mineral 
but  not  yet  patented,  may  be  held  and  patented  under  the  provisions  of  this 
act  the  same  as  if  such  filing,  claim,  or  improvement  were  subsequent  to  the 
date  of  the  passage  hereof.     [Approved  February  11,  1897.] 

An  act  making  appropriations  for  sundry  civil  expenses  of  the  Government 
for  the  fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  ninety- 
eight,  and  for  other  purposes. 

*  H:  *  *  *  *  * 

All  public  lands  heretofore  designated  and  reserved  by  the  President  of  the 
United  States  under  the  provisions  of  the  act  approved  March  third,  eighteen 
hundred  and  ninety-one,  the  orders  for  which  shall  be  and  remain  in  full 
force  and  effect,  unsuspended  and  unrevoked,  and  all  public  lands  that  may 
hereafter  be  set  aside  and  reserved  as  public  forest  reserves  under  said  act, 
shall  be  as  far  as  practicable  controlled  and  administered  in  accordance  with 
the  following  provisions  : 

No  public  forest  reservation  shall  be  established,  except  to  improve  and 
protect  the  forest  within  the  reservation,  or  for  the  purpose  of  securing  fa- 
vorable conditions  of  water  flows,  and  to  furnish  a  continuous  supply  of  tim- 
ber for  the  use  and  necessities  of  citizens  of  the  United  States ;  but  it  is  not 
the  purpose  or  intent  of  these  provisions,  or  of  the  act  providing  for  such 
reservations,  to  authorize  the  inclusion  therein  of  lands  more  valuable  for 
the  mineral  therein,  or  for  agricultural  purposes,  than  for  forest  purposes. 

4:  :f:  5}:  5i«  ^  sK  * 

The  Secretary  of  the  Interior  may  permit,  under  regulations  to  be  pre- 
scribed by  him,  the  use  of  timber  and  stone  found  upon  such  reservations, 
free  of  charge,  by  bona  fide  settlers,  miners,  residents,  and  prospectors  for 
minerals,  for  firewood,  fencing,  buildings,  mining,  prospecting,  and  other  do- 
mestic purposes,  as  may  be  needed  by  such  persons  for  such  purposes ;  such 
timber  to  be  used  within  the  State  or  Territory,  respectively,  where  such 
reservations  may  be  located. 

Nothing  herein  shall  be  construed  as  prohibiting  the  egress  or  ingress  of 
actual  settlers  residing  within  the  boundaries  of  such  reservations,  or  from 
crossing  the  same  to  and  from  their  property  or  homes ;  and  such  wagon 
roads  and  other  improvements  may  be  constructed  thereon  as  may  be  neces- 
sary to  reach  their  homes  and  to  utilize  their  property  under  such  rules  and 
regulations  as  may  be  prescribed  by  the  Secretary  of  the  Interior.  Nor  shall 
anything  herein  prohibit  any  person  from  entering  upon  such  forest  reserva- 
tions for  all  proper  and  lawful  purposes,  including  that  of  prospecting,  locat- 


798 


APPENDIX. 


ing,  and  developing  the  mineral  resources  thereof :     Provided,  That  such  per- 
sons comply  with  the  rules  and  regulations  covering  such  forest  reservations. 

Upon  the  recommendation  of  the  Secretary  of  the  Interior,  with  the  ap- 
proval of  the  President,  after  sixty  days'  notice  thereof,  puhlished  in  two  pa- 
pers of  general  circulation  in  the  State  or  Territory  wherein  any  forest  reser- 
vation is  situated,  and  near  the  said  reservation,  any  public  lands  embraced 
within  the  limits  of  any  forest  reservation  which,  after  due  examination  by 
personal  inspection  of  a  competent  person  appointed  for  that  purpose  by  the 
Secretary  of  the  Interior,  shall  be  found  better  adapted  for  mining  or  for 
agricultural  purposes  than  for  forest  usage,  may  be  restored  to  the  public  do- 
main. And  any  mineral  lands  in  any  forest  reservation  which  have  been  or 
which  may  be  shown  to  be  such,  and  subject  to  entry  under  the  existing  min- 
ing laws  of  the  United  States  and  the  rules  and  regulations  applying  thereto, 
shall  continue  to  be  subject  to  such  location  and  entry,  notwithstanding  any 
provisions  herein  contained.     [Approved  June  4,  1897.1 

An  act  making  further  provisions  for  a  civil  government  for  Alaska,  and 
for  other  purposes. 

Sec.  15.  The  respective  recorders  shall,  upon  the  payment  of  the  fees  for 
the  same  prescribed  by  the  Attorney-General,  record  separately,  in  large  and 
well-bound  separate  books,  in  fair  hand : 

First.     Deeds,  grants,  transfers,  contracts  to  sell  or  convey  real  estate  and 
mortgages  of  real  estate,  releases  of  mortgages,  powers  of  attorney,  leases 
which  have  been  acknowledged  or  proved,  mortgages  upon  personal  property; 
******* 

Ninth.    Affidavits  of  annual  work  done  on  mining  claims ; 

Tenth.     Notices  of  mining  location  and  declaratory  statements ; 

Eleventh.  Such  other  writings  as  are  required  or  permitted  by  law  to  be 
recorded,  including  the  liens  of  mechanics,  laborers,  and  others  :  Provided, 
Notices  of  location  of  mining  claims  shall  be  filed  for  record  within  ninety 
days  from  the  date  of  the  discovery  of  the  claim  described  in  the  notice,  and 
all  instruments  shall  be  recorded  in  the  recording  district  in  which  the  prop- 
erty or  subject-matter  affected  by  the  instrument  is  situated,  and  where  the 
property  or  subject-matter  is  not  situated  in  any  established  recording  district 
the  instrument  affecting  the  same  shall  be  recorded  in  the  office  of  the  clerk 
of  the  division  of  the  courts  having  supervision  over  the  recording  division 
in  which  such  property  or  subject-matter  is  situated. 

*  *  *  *  *  *  * 

*  *  *  Provided,  Miners  in  any  organized  mining  district  may  make  rules 
and  regulations  governing  the  recording  of  notices  of  location  of  mining 
claims,  water  rights,  flumes  and  ditches,  mill  sites  and  affidavits  of  labor,  not 
in  conflict  with  this  act  or  the  general  laws  of  the  United  States ;  and  noth- 
ing in  this  act  shall  be  construed  so  as  to  prevent  the  miners  in  any  regularly 
organized  mining  district  not  within  any  recording  district  established  b}'  the 
court  from  electing  their  own  mining  recorder  to  act  as  such  until  a  recorder 
therefor  is  appointed  by  the  court :  Provided  further.  All  records  heretofore 
regularly  made  by  the  United  States  commissioner  at  Dyea,  Skagway,  and  the 
recorder  at  Douglas  City,  not  in  conflict  with  any  records  regularly  made 
with  the  United  States  commissioner  at  Juneau,  are  hereby  legalized.  And 
all  records  heretofore  made  in  good  faith  in  any  regularly  organized  mining 
district  are  hereby  made  public  records,  and  the  same  shall  he  delivered  to  the 
recorder  for  the  recording  district  including  such  mining  district  within  six 
months  from  the  passage  of  this  act. 

Sec.  26.     The  laws  of  the  United  States  relating  to  mining  claims,  mineral 


MINERAL    LAWS. 


799 


locations,  and  rights  incident  thereto  are  hereby  extended  to  the  district  of 
Alaska:  Provided,  That  subject  only  to  such  general  limitations  as  may  be 
necessary  to  exempt  navigation  from  artificial  obstructions  all  land  and  shoal 
water  between  low  and  mean  high  tide  on  the  shores,  bays,  and  inlets  of  Ber- 
ing Sea,  within  the  jurisdiction  of  the  United  States,  shall  be  subject  to  ex- 
ploration and  mining  for  gold  and  other  precious  metals  by  citizens  of  the 
United  States,  or  persons  who  have  legally  declared  their  intentions  to  be- 
come such,  under  such  reasonable  rules  and  regulations  as  the  miners  in  or- 
ganized mining  districts  may  have  heretofore  made  or  may  hereafter  make 
governing  the  temporary  possession  thereof  for  exploration  and  mining  pur- 
poses until  otherwise  provided  by  law  :  Provided  further,  That  the  rules  and 
regulations  established  by  the  miners  shall  not  be  in  conflict  with  the  mining 
laws  of  the  United  States ;  and  no  exclusive  permits  shall  be  granted  b}-  the 
Secretary  of  War  authorizing  any  person  or  persons,  corporation,  or  com- 
pany to  excavate  or  mine  under  any  of  said  waters  below  low  tide,  and  if  such 
exclusive  permit  has  been  granted  it  is  hereby  revoked  and  declared  null  and 
void ;  but  citizens  of  the  United  States  or  persons  who  have  legally  declared 
their  intention  to  become  such  shall  have  the  right  to  dredge  and  mine  for 
gold  or  other  precious  metals  in  said  waters,  below  low  tide,  subject  to  such 
general  rules  and  regulations  as  the  Secretary  of  War  may  prescribe  for  the 
preservation  of  order  and  the  protection  of  the  interests  of  commerce ;  such 
rules  and  regulations  shall  not,  however,  deprive  miners  on  the  beach  of  the 
right  hereby  given  to  dump  tailings  into  or  pump  from  the  sea  opposite  their 
claims,  except  w  here  such  dumping  would  actually  obstruct  navigation ;  and 
the  reservation  of  a  roadway  sixty  feet  wide,  under  the  tenth  section  of  the 
act  of  May  fourteenth,  eighteen  hundred  and  ninety-eight,  entitled  "An  act 
extending  the  homestead  laws  and  providing  for  right  of  way  for  railroads 
in  the  district  of  Alaska,  and  for  other  purposes,"  shall  not  apply  to  mineral 
lands  or  town  sites.     [Approved  June  6,  1900.] 

An  act  extending  the  mining  laws  to  saline  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  unoccupied  public  lands  of 
the  United  States  containing  salt  springs,  or  deposits  of  salt  in  any  form,  and 
chiefly  valuable  therefor,  are  hereby  declared  to  be  subject  to  location  and 
purchase  under  the  provisions  of  the  law  relating  to  placer-mining  claims : 
Provided,  That  the  same  person  shall  not  locate  or  enter  more  than  one  claim 
hereunder.     [Approved  January  31,  1901.] 

An  act  defining  what  shall  constitute  and  providing  for  assessments  on  oil 
mining  claims. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  Atnerica  in  Congress  assembled.  That  where  oil  lands  are  located 
under  the  provisions  of  title  thirty-two,  chapter  six,  Revised  Statutes  of  the 
United  States,  as  placer  mining  claims,  the  annual  assessment  labor  upon 
such  claims  may  be  done  upon  any  one  of  a  group  of  claims  lying  contiguous 
and  owned  by  the  same  person  or  corporation,  not  exceeding  five  claims  in  all : 
Provided,  That  said  labor  will  tend  to  the  development  or  to  determine  the 
oil-bearing  character  of  such  contiguous  claims.  [Approved  February  12, 
1903.] 

An  act  to  amend  the  laws  governing  labor  or  improvements  upon  mining 
claims  in  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  during  each  year  and  until 
patent  has  been  issued  therefor,  at  least  one  hundred  dollars'  worth  of  labor 
shall  be  performed  or  improvements  made  on,  or  for  the  benefit  or  develop- 


Soo  APPENDIX. 

ment  of  in  accordance  with  existing  law,  each  mining  claim  in  the  district  of 
Alaska  heretofore  or  hereafter  located.  And  the  locator  or  owner  of  such 
claim  or  some  other  person  having  knowledge  of  the  facts  may  also  make 
and  file  with  the  said  recorder  of  the  district  m  which  the  claims  shall  be 
situate  an  affidavit  showing  the  performance  of  labor  or  making  of  improve- 
ments to  the  amount  of  one  hundred  dollars  as  aforesaid  and  specifying  the 
character  and  extent  of  such  work.  Such  affidavit  shall  set  forth  the  follow- 
ing- First,  the  name  or  number  of  the  mining  claims  and  where  situated; 
second,  the  number  of  days'  v^ork  done  and  the  character  and  value  of  the 
improvements  placed  thereon;  third,  the  date  of  the  performance  of  such  labor 
and  of  making  improvements;  fourth,  at  whose  instance  the  work  was  done 
or  the  improvements  made;  fifth,  the  actual  amount  paid  for  work  and  im- 
provement, and  by  whom  paid  when  the  same  was  not  done  by  the  owner. 
Such  affidavit  shall  be  prima  facie  evidence  of  the  performance  of  such  work 
or  making  of  such  improvements,  but  if  such  affidavits  be  not  filed  within 
the  time  fixed  by  this  act  the  burden  of  proof  shall  be  upon  the  claimant  to 
establish  the  performance  of  such  annual  work  and  improvements.^  And  upon 
failure  of  the  locator  or  owner  of  any  such  claim  to  comply  with  the  pro- 
visions of  this  act,  as  to  performance  of  work  and  improvements,  such  claim 
shall  become  forfeited  and  open  to  location  by  others  as  if  no  location  of  the 
same  had  ever  been  made.  The  affidavits  required  hereby  may  be  made  be- 
fore any  officer  authorized  to  administer  oaths,  and  the  provisions  of  sections 
fifty-three  hundred  and  ninety-two  and  fifty-three  hundred  and  ninety-three 
of  the  Revised  Statutes  are  hereby  extended  to  such  affidavits.  Such  affida- 
vits shall  be  filed  not  later  than  ninety  days  after  the  close  of  the  year  in 
which  such  work  is  performed. 

Sec.  2.  That  the  recorders  for  the  several  divisions  or  districts  of  Alaska 
shall  collect  the  sum  of  one  dollar  and  fifty  cents  as  a  fee  for  the  filing,  re- 
cording, and  indexing  said  annual  proofs  of  work  and  improvements  for  each 
claim  so  recorded.     [Approved  March  2,  1907.] 

An  act  for  relief  of  applicants  for  mineral  surveys. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  asscnibh-'d.  That  the  Secretary  of  the  Treasury 
be,  and  he  is  hereby,  authorized  and  directed  to  pay,  out  of  the  moneys  here- 
tofore or  hereafter  covered  into  the  Treasury  from  deposits  made  by  indi- 
viduals to  cover  cost  of  work  performed  and  to  I)e  performed  in  the  offices  of 
the  United  States  surve5'ors-general  in  connection  with  the  survey  of  mineral 
lands,  any  excess  in  the  amount  deposited  over  and  above  the  actual  cost  of 
the  work  performed,  including  all  expenses  incident  thereto  for  which  the  de- 
posits were  severally  made  or  the  whole  of  any  unused  deposit ;  and  such 
sums,  as  the  several  cases  may  be,  shall  be  deemed  to  be  annually  and  perma- 
nently appropriated  for  that  purpose.  Such  repayments  shall  be  made  to  the 
person  or  persons  who  made  the  several  deposits,  or  to  his  or  their  legal  rep- 
resentatives, after  the  completion  or  abandonment  of  the  work  for  which  the 
deposits  were  made,  and  upon  an  account  certified  by  the  surveyor-general  of 
the  district  in  which  the  mineral  land  surveyed,  or  sought  to  be  surveyed  is 
situated  and  approved  by  the  Commissioner  of  the  General  Land  Office. 
[Approved  February  24,  1909.] 

An  act  extending  the  time  in  which  to  file  adverse  claims  and  institute  ad- 
verse suits  against  mineral  entries  in  the  District  of  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  in  the  District  of  Alaska  ad- 
verse claims  authorized  and  provided  for  in  sections  twenty-three  hundred 
and  twenty-five  and  twenty-three  hundred  and  twenty-six.  United  States  Re- 
vised Statutes,  may  be  filed  at  any  time  during  the  sixty  days  period  of  publi- 
cation or  within  eight  months  thereafter,  and  the  adverse  suits  authorized  and 


MINERAL   LAWS.  8oi 

provided  for  in  section  twenty-three  hundred  and  twentj'-six,  United  States 
Revised  Statutes,  may  be  instituted  at  any  time  within  sixty  days  after  the 
filing  of  said  claims  in  the  local  land  office.     [Approved  June  7,  1910.] 

An  act  to  authorize  the  President  of  the  TTnited  States  to  make  withdrawals 
of  public  lands  in  certain  cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  President  may,  at  any 
time  in  his  discretion,  temporarily  withdraw  from  settlement,  location,  sale, 
or  entry  any  of  the  public  lands  of  the  United  States  including  the  District  of 
Alaska  and  reserve  the  same  for  water-power  sites,  irrigation,  classification 
of  lands,  or  other  public  purposes  to  be  specified  in  the  orders  of  withdrawals, 
and  such  withdrawals  or  reservations  shall  remain  in  force  until  revoked  by 
him  or  by  an  Act  of  Congress. 

Sec.  2.  That  all  lands  v/ithdrawn  under  the  provisions  of  this  Act  shall  at 
all  times  be  open  to  exploration,  discovery,  occupation,  and  purchase,  under 
the  mining  laws  of  the  United  States,  so  far  as  the  same  apply  to  minerals 
other  than  coal,  oil,  gas,  and  phosphate:  Provided,  That  the  rights  of  any 
person  who,  at  the  date  of  any  order  of  withdrawal  heretofore  or  hereafter 
made,  is  a  bona  fide  occupant  or  claimant  of  oil  or  gas  bearing  lands,  and 
who,  at  such  date,  is  in  diligent  prosecution  of  work  leading  to  discovery  of 
oil  or  gas,  shall  not  be  aft'ected  or  impaired  by  such  order,  so  long  as  such 
occupant  or  claimant  shall  continue  in  diligent  prosecution  of  said  work: 
And  provided  further,  That  this  Act  shall  not  be  construed  as  a  recognition, 
abridgment,  or  enlargement  of  any  asserted  rights  or  claims  initiated  upon 
any  oil  or  gas  bearing  lands  after  any  withdrawal  of  such  lands  made  prior  to 
the  passage  of  this  Act:  And  provided  further.  That  there  shall  be  excepted 
from  the  force  and  effect  of  any  withdrawal  made  under  the  provisions  of 
this  Act  all  lands  which  are,  on  the  date  of  such  withdrawal,  embraced  in  any 
lawful  homestead  or  desert-land  entry  theretofore  made,  or  upon  which  any 
valid  settlement  has  been  made  and  is  at  said  date  being  maintained  and  per- 
fected pursuant  to  law ;  but  the  terms  of  this  proviso  shall  not  continue  to  ap- 
ply to  any  particular  tract  of  land  unless  the  entryman  or  settler  shall  continue 
to  comply  with  the  law  under  which  the  entry  or  settlement  was  made:  And 
provided  further.  That  hereafter  no  forest  reserve  shall  be  created,  nor  shall 
any  additions  be  made  to  one  heretofore  created  within  the  limits  of  the 
States  of  Oregon,  Washington,  Idaho,  Montana,  Colorado,  or  Wyoming,  ex- 
cept by  Act  of  Congress. 

Sec.  3.  That  the  Secretary  of  the  Interior  shall  report  all  such  withdrawals 
to  Congress  at  the  beginning  of  its  next  regular  session  after  the  date  of  the 
withdrawals.     [Approved  June  25,  1910.] 

An  act  to  protect  the  locators  in  good  faith  of  oil  and  gas  lands  who  shall 
have  effected  an  actual  discovery  of  oil  or  gas  on  the  public  lands  of 
the  United  States,  or  their  successors  in  interest. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  in  no  case  shall  patent  be  de- 
nied to  or  for  any  lands  heretofore  located  or  claimed  under  the  mmmg 
laws  of  the  United  States  containing  petroleum,  mineral  oil,  or  gas  solely  be- 
cause of  any  transfer  or  assignment  thereof  or  of  any  mterest  or  mterests 
therein  by  the  original  locator  or  locators,  or  any  of  them,  to  any  qualified 
person  or  persons,  or  corporation,  prior  to  discovery  of  oil  or  gas  therein, 
but  if  such  claim  is  in  all  other  respects  valid  and  regular,  patent  therefor  not 
exceeding  one  hundred  and  sixty  acres  in  any  one  claim  shall  issue  to  the 
holder  or  holders  thereof,  as  in  other  cases :  Provided,  hozvever.  That  such 
lands  were  not  at  the  time  of  inception  of  development  on  or  under  such 
claim  withdrawn  from  mineral  entry.     [Approved  March  2,  1911.] 

51 — Mining  Law 


INDEX 


[References  are  to  Pages.] 

ABANDONMENT, 

of  claims,  390,  395. 

of  leases,  669,  678,  705,  726-728. 

ACCOMMODATION, 

locators,  86-88,  161. 

ACCOUNTING, 

by  tenants  in  common,  740-752. 

ACTS  OF  LOCATION, 
See  Discovery  Work  ;   Notices  of  Location  ;    Marking  the  Location  : 

Record. 
ADIT, 

defined,  146-148. 

ADVERSE  CLAIMS, 

nature  and  need  of,  282,  301-304,  566-584. 

ADVERSE   POSSESSION, 

annual  labor  and,  333-234. 

as  substitute  for  acts  of  location,  272-275. 

AGENTS, 

locations  by,  79-82. 

AGRICULTURAL  LANDS, 

See  Homestead  Entries. 

ALIENS, 

locations  by,  71-75. 

AMENDMENTS, 

of  record,  238-257. 

ANNUAL  LABOR  AND  IMPROVEMENTS, 
apportionment  of,  325,  326  note, 
burden  of  proof,  317,  322,  331,  340,  341. 

803 


804  INDEX. 

[References  are  to  Pages.] 

ANNUAL  LABOR  AND  IMPROVEMENTS— Co«/wM^d. 

forfeitures  to  co-owners  for  failure  to  contribute,  342-353,  574-579. 

pending  patent  proceedings,  334-340. 

place  of  work,  313-332. 

record  evidence  of  performance,  340-34L 

relocation  for  failure  to  perform,  354-390. 

resumption  of  work,  395^10. 

state  and  district  regulations,  305-310. 

value  of  work,  310-311,  323. 

what  will  serve  as,  310-332. 

whose  work  will  count,  311-313,  326-332. 

APEX, 

defined,  16-18,  36-38,  53,  56. 
judicial  apex,  445-481. 
theoretical  apex,  481-485. 

ASSOCIATIONS, 

corporations  as,  77  note. 

BLIND  VEINS, 

and  tunnel  sites,  276-304. 

COMPETING  LOCATORS,  125-128. 

CONDITIONS  IN  LEASES, 

equitable    relief   against    forfeitures,    702-708. 

implied   conditions,   670,   673-675,  683-690,   718,  724,  733. 

impossibility,  735,  736. 

remedies  for  breach,  640,  670,  675-676,  691,  692,  709,  710,  725. 

waiver  of  forfeiture,   695-697. 

CONTIGUOUS, 

defined,  316  note. 

CONVEYANCES, 

as    affecting   extralateral    rights,   551-565. 
before  discovery,  104-109. 
severance  of  minerals  on,  760-785. 

CO-OWNERS, 

See  Accounting;   Annual  Labor  and  Improvement;    Partition;    Ten- 
ancies IN  Common. 
CORPORATIONS, 

locations  by,  75-78. 


INDEX.  805 

[References  are  to  Pages.] 

CO-TENANTS, 

See   Accounting;    Annual   Labor  and   Improvement;    Partition;    Ten- 
ancies IN  Common. 

COUNTRY  ROCK 
defined,    13. 

COVENANTS  IN  LEASES, 

implied  for  development  of  property,  674,  677,  678,  683-690. 
implied  for  quiet  enjoyment,  662-663,  699,  703. 
implied  warranty  of  title,  662-663. 
mutuality,  643-644,  668,  681,  682,  694-695. 
remedies  for  breach,  691-692. 

CROSS- VEINS,  287-292,  547-551. 

DEEDS, 

See  Conveyances. 

DEPUTY   MINERAL  SURVEYORS, 
locations  by,  82-86. 

DIP   OF   VEIN, 
defined,  38. 
location  on,   128-131. 
union  of  veins  on  dip,  543-547. 

DISCOVERY, 

discovery  work,  see  that  title. 

loss  of,  131-134. 

necessity  of  in   discovery   shaft,    143-146. 

need  not  precede  acts  of  location,   138-139,  298-299. 

pedis  possessio  and,  89-103. 

premature  locations,  141-142.  231-234,  358-389. 

underground,   140-141. 

what  constitutes,  94,  97,   109-125,  704-705. 

within  older  existing  or  inchoate  location,  134-142,  231-234,  358-389. 

DISCOVERY  SHAFT, 

See  Discovery  Work. 

DISCOVERY  WORK, 

adit  defined,  146-148. 

equivalents  of  discovery  shaft,  146-151. 

necessity  of  discovery  in   discovery  shaft,    143-146. 


INDEX. 

[References  are  to  Pages.'] 
DUMMY  LOCATORS,  86-88,  161. 
END  LINES, 

See    ExTRALATERAL    RiGHTS. 

EXCESSIVE  LOCATIONS,  207-217. 

EXTRALATERAL  RIGHTS, 

effect  of  conveyances  on,  551-565. 

judicial  apex,  445-481. 

laying  lines  of  junior  claim  over  senior  to  perfect  extralateral  rights, 

454-465. 
relation  of  end  lines  and  side  lines  as  aflfecting,  421-502. 
secondary  veins,  502-543. 
theoretical  apex,  481-485. 
under  act  of  1866,  421^31. 
under  act  of  1872,  431-565. 

FOREST  RESERVES, 

mining  locations  on,  588-595. 

FORFEITURES, 

See  Annual  Labor  and  Improvements;  Conditions  in  Leases;  Re- 
location. 

GRANTS, 

See  Mexican  Land  Grants  ;  Railroad  Land  Grants  ;  School  Land  Grants. 

HOMESTEAD  ENTRIES, 
mining  lands  and,  612-616. 

IMPROVEMENTS, 

See  Annual   Labor   and   Improvements. 

INDIAN  RESERVATIONS, 

mineral  lands  in,  585-588. 

INFANTS, 

locations  by,  78-80. 

IN   PLACE, 

See  Rock  in  Place. 

INTRALIMITAL  RIGHTS,  49,  412-421. 

JUDICIAL  APEX,  445^81. 

KNOWN  LODES  IN  PLACERS,  257-272. 


INDEX.  807 


[References  are  to  Pages.] 

LAND  OFFICE  EMPLOYEES, 
locations  by,  82-86. 
receivers,  759  note. 

LATERAL    SUPPORT, 
right  of,  77^779. 

LEASES, 

See  Conditions  in  Leases;  Covenants  in  Leases;  Mining  Leases. 

LOCATION, 

See  Annual  Labor  and  Improvements;  Discovery;  Discovery  Work;  Ex- 
cessive Locations;  Extralateral  Rights;  Forest  Reserves;  Homestead 
Entries;  Indian  Reservations;  Intralimital  Rights;  Known  Lodes  in 
Placers  ;  Marking  the  Location  ;  Mexican  Land  Grants  ;  Notices  of 
Location;  Pedis  Possessio;  Premature  Relocation;  Railroad  Land 
Grants;  Record;  Relocation;  School  Land  Grants;  Town  Sites;  Tun- 
nel Sites  and  Blind  Veins  in  Tunnels. 
defined,  297. 

LOCATORS, 

See  Accommodation  Locators;  Adverse  Possession;  Agents;  Aliens;  As- 
sociations; Competing  Locators;  Corporations;  Deputy  Mineral  Sur- 
veyors; Dummy  Locators;  Infants;  Land  Office  Employees. 

LODES   OR  VEINS, 

apex  defined,  16-18,  36-38,  53,  56. 

defined,  &-7,  13-15  and  note,  19-20,  22-23,  35,  54-58,  66.  112. 

LODE  LOCATION, 
defined,   66. 

MARKING  THE  LOCATION, 

adopting  existing  markings,   188-189,  251-252. 

excessive  locations,  207-217. 

time   to   mark,    177-180. 

what  is  sufficient  marking,  179,  181-207. 

MEXICAN  LAND  GRANTS, 
mineral  lands  on,  607-612. 

MILL  SITES,  627-634. 

MINERAL  LANDS, 

defined,  22-23,  68,  119,  125. 


8o8  INDEX. 

[References  are  to  Pages.] 

MINERAL  SURVEYORS, 

location  by  depnt\',  82-86. 

MINING  LEASES, 

conditions  in,  see  that  title. 

covenants  in,  see  that  title. 

oil  and  gas  leases,  635-7n. 

other  mining  leases,  711-736. 

property    rights    of    lessees    under    oil    and    gas    leases,    637,    645-647, 

649-651,  655-656,  659-661,  663,  672,,  681,  700,  709,  713. 
property    rights    of   lessees   under   other   mining   leases,    712-713,    719, 
720-722,  725. 

MINING  PARTNERSHIPS,  755-759. 

MINORS, 

See    Infants. 

MONUMENTS, 

See  Marking  the  Location  ;  Record. 

NATURAL  OBJECTS, 

See  Marking  the  Location;  Record. 

NOTICES  OF  LOCATION. 

place  to  post,  156-161,  172-176. 
record,  see  that  title, 
rights  acquired  by  posting,  162-171. 
time  to  post,   153-155. 

OIL  AND  GAS, 

property  in,  635  note. 

OIL  AND  GAS  LEASES, 

conditions  and  covenants  in,  662-711. 
mutuality  in,  643-644,  668,  681-682,  694-695. 
option  in,  643. 
property  nature  of  lessees  interest  in,  635-661. 

PARTITION, 

of  mining  property,  353,  750,  752-755. 

PARTNERSHIPS, 

See  Mining  Partnerships. 

PATENT   PROCEEDINGS, 

See   Adverse   Claims  ;    Protests. 


INDEX.  809 

[References  are  to  Pages.] 

PEDIS  POSSESSIO, 

relation  of  to  locations,  89-103. 

PLACER, 

defined,  65-66. 

known  lodes  in,  257-272. 

POSTING  NOTICES. 

See  Notices  of  Location. 

PREMATURE  RELOCATION, 

effect  of,  141-142,  231-234,  358-389. 

PRINCIPAL  AND  AGENT, 

See  Agent. 

PROTESTS, 

nature  of,  582-583. 

RAILROAD  LAND  GRANTS, 
mineral  lands  on,  595-604. 

RECEIVERS,  759  note. 

RECORD, 

amendments  of,  237-257. 

contents  of  recorded  paper,  222-236. 

effect  of  failure  to  record,  217-222. 

monuments  and  natural  objects,  222-227,  230-231,  235-236. 

RELOCATION, 

■  forfeiture  by,  354-390. 
necessity   of  entry,   389-390. 

premature  locations  by  third  parties,  141-142,  231-234,  358-389. 
relocation  by  forfeiting  owner,  354-357. 
resumption  of  work  as  affecting,  395-410. 

RESERVATIONS, 

See  Indian  Reservations. 

RESUMPTION  OF  WORK, 
what  constitutes,  395^10. 

RIGHTS  OF  WAY  FOR  TUNNELS,  286-294. 

ROCK  IN  PLACE, 

defined,  13-14,  20-21,  23,  40-41. 


8lO  INDEX. 

[References  are  to  Pages.] 

SCHOOL  LAND  GRANTS, 

mineral  lands  in,  605-607. 

SEVERANCE  OF  MINERALS, 

See    Conveyances  ;    Support. 

STATE  SCHOOL  LAND  GRANTS, 
mineral  lands  in,  605-607. 

STRIKE  OF  VEIN, 
defined,  39. 

SUBJACENT  SUPPORT, 

right  of,  769-775,  779-785. 

SUBSURFACE  RIGHTS, 

See  ExTRALATERAL  RIGHTS;   Intralimital  Rights;   Support. 

SUPPORT, 

rights  of  lateral,  776-779. 

rights  of  subjacent,  769-775,  779-785. 

SURVEYORS, 

locations  by  deputy  mineral,  82-86. 

TENANCIES  IN  COMMON, 

accounting  by  tenants,  740-752. 

adverse  claims,  578-579. 

forfeiture  for  failure  to  contribute  to  annual  labor,  342-353,  574-579. 

partition,  353,  750,  752-755. 

rights  and  duties  of  tenant,  697-698,  737-755. 

THEORETICAL  APEX,  481-485. 

TOWNSITES, 

mineral  lands  on,  616-627. 

TUNNEL  SITES  AND  BLIND  VEINS  IN  TUNNELS,  275-303. 

UNDERGROUND  DISCOVERY,   140-14L 

UNION  OF  VEINS  ON  DIP,  543-547. 

VALUABLE  MINERAL  DEPOSITS, 

See  Mineral  Lands. 
VEINS, 
See  Apex;  Blind  Veins;  Cross  Veins;  Dip  of  Vein;  Judicial  Apex;  Known 

Lodes  in  Placers  ;  Lodes  or  Veins  ;  Rock  in  Place  ;   Strike  of  Vein  ; 

Theoretical  Apex;  Union  of  Veins  on  Dip. 


SC^^^-^-,  nv  LAW  LIBRARY 

UN-  .  .  7  OF  CALIFORNIA 

LiyS  Ar,'GELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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